(1) This petition is directed against the order passed by thee Deputy Commissioner of Police, Ahmedabad, removing the petitioner from the police force. The petitioner was appointed by the District Superintendent of Police, District Surat, to the post of a police constable in the year 1948. In 1953 in the ordinary course of service, he was transferred to the City of Ahmedabad. In August 1959, he suffered from kidney trouble and was advised to have himself operated and was operated in the Civil Hospital at Ahmedabad in September 1959. The first operation was a failure. According to the petitioner, it had so happened because there was negligence on the part of the authorities of the Civil Hospital. He was advised to undergo a second operation. He was released from the Civil Hospital on the 31st (sic) of September 1959. Having lost confidence in the management and the staff of the Civil Hospital, the petitioner applied to the District Superintendent of Police to permit him to have the operation performed by a doctor of his choice, which permission was granted. The second operation was done on the 11th October 1959 Surgeon Dr.Navin Desai in his private clinic. The operation was successful. According to the petitioner he had to spend Rs. 650 to undergo this second operation. He alleged that he had to incur this large expense because of the negligence on the part of the authorities of the Civil Hospital. The petitioner having drawn the sympathy of his superior officers, on his request, was given an immediate help of Rs. 150 from the Police Welfare Fund with the department and was also given a loan of Rs.300. The petitioner, however, continued to make demands from higher officers that he should be given full help to cover all his expenses which he had to incur because of the alleged negligence on the part of the Civil Hospital authorities. The petitioner also averred that when the Inspector General of Police, Bombay State, visited Ahmedabad on the 31st March 1960, at his request gave an interview to him and at the time the Inspector General of Police had informed him that he will write to the Government for reimbursement of the medical expenses. Because of the long illness, the petitioner had exhausted his leave and, therefore, had to go on half pay leave and even from that half pay recovery was being made to reimburse the loan of Rs.300. he was thus in great financial difficulty and as no reply was given to him by the department to his requests to give him full help to meet the expenses incurred, he was exasperated. When he found that the department was not prepared to accede to his request, he addressed a petition dated 1st June 1960 to the Chief Minister of the State of Gujarat requesting him to take into consideration his case and to see that he was paid full medical expenses and was given only light duty in his service. In the said petition to the Chief Minister, he had mentioned that if he were not given an interview soon, he will be left with no other remedy except to resort to fast. Nothing was heard in reply to this petition to the Chief Minister also and hence when he was on casual leave, he went to the Sachivalaya on the 14th June 1960 at about 11-15 a.m. and waited at its entrance for an interview which was never given to him, so he left the place in the evening. According to the petitioner, the Inspector of Police, Navrangpura Police Station, reported on 14th June 1960 to the Deputy Commissioner of Police, Divisions, Ahmedabad City that the petitioner had gone on peaceful hunger strike from 11-15 hours on the 14th June 1960 and that he was sitting just outside the main gate of the Sachivalaya compound. Later another report was submitted on that day to that to the effect that the petitioner had withdrawn himself in evening from hunger strike. The petitioner then received an order dated 14th June 1960 suspending him from service. According to petitioner, he being on casual leave from the 12th June 1960 he himself ha not reported for duty on 14th June 1960 but on that date the Inspector of Police, Madhupura police station, late in the evening of cancelled the casual leave granted to the petitioner and directed him to present himself on duty, which order he had obeyed. He was, however, not allowed to join duty and was served with an order of suspension. On the 16th June 1960 he was served with a charge sheet. The charge framed was gross breach of discipline in resorting to hunger strike on 14-9-1960 at 11-15 hours outside the Sachivalaya for the redress of the alleged grievances. The petitioner was called upon to attend the inquiry on 17th June 1960 before the Superintendent of Police. In due course the Inquiry Officer then submitted his report to the Deputy Commissioner of Police, Ahmedabad City, on the 23rd June 1960 with a recommendation that the petitioner deserved a chance to improve and, therefore, he suggested that his pay maybe reduced from Rs. 40 to 35 for a period of one year. But the Deputy Commissioner of Police issued a show cause notice dated 30th June 1960 informing the petitioner that he proposed to dismiss him from police force and called upon him to show cause within seven days why the proposed punishment should not be awarded. The petitioner put in his submission in respect of the said show cause notice. Thereafter, the Deputy Commissioner of Police by an order dated 11/12th July 1960 removed him service. The petitioner thereupon preferred an appeal against the said order, to the Board of Appeal appointed by the Commissioner of Police. The appeal, was, however, rejected on 14th October 1960. The petitioner then preferred a Revision Application to the State Government on 27th December 1960. For a long time, he did not receive any reply to the petition, so the he sought an interview with the Inspector General of Police which interview was granted. However, the said Revision Application was dismissed about which he was duly informed both by the Inspector General of Police as well as the State Government. That communication he received from the Government of Gujarat on 21st July 1961 and from the Inspector General of Police on 3rd August 1961.
(2) In the return filed by the Inspector General of Police on behalf of the Government, it has been conceded that the petitioner had suffered from kidney trouble and that he had to be operated for removing a stone the kidney at the Civil Hospital and that unfortunately that the operation was not successful. The petitioner was then offered the services of Dr. Joshi, F.R.C.S., and an experienced Surgeon, to do the second operation, that the petitioner had refused and expressed his service to get himself treated by a private doctor of his choice. At that time, it was made clear to be the petitioner that the maximum help he could from the Welfare Fund could under no circumstances exceed Rs. 150/- as the said Welfare Fund existed for the benefit of the whole police force and could not afford to give a large amount to any one individual. After the operation when he resumed his duty he was actually given very light work by giving him telephone attendants's duty, which is considered in the police force. On the 1st June 1960 he had written a letter to the Chief Minister, Gujarat State, to the effect that if his grievance regarding negligent treatment at the Civil Hospital and the recovery of Rs. 20/- per month from his pay towards loan dues were not redressed, he would proceed on hunger-strike at Sachivalaya. The petitioner then requested for six days' casual leave from 11th June 1960 on the ground of illness of his wife. On the 13th June 1960, the Police Inspector, Madhupura reported to the then Commissioner of Police the fact that the petitioner was propagating amongst policemen that he was going on hunger strike from 14th June 1960 and requested for necessary action. The Commissioner of Police passed an order that proper and necessary watch may he kept and a report may be made. On the 14th June 1960 at 11-15 hours the petitioner was found at the Sachivalaya sitting near the entrance door of the Sachivalaya. On receiving this information the Police Inspector Navrangpura, Mr. N.C. Barot immediately proceeded to Sachivalaya and on enquiry from the petitioner as to what was the reason for the step taken by him. The petitioner told him that he was on hunger strike his complaint regarding his expenses for the major operation and the nature of work taken from him had fallen on deaf ears. The report was then immediately made by the said Police Officer to the Commissioner of Police. Then it was noticed that the petitioner withdrew from hunger strike in the evening on the said day. Because of these circumstances an order suspending the petitioner from service was passed pending departmental inquiry for indiscipline. Thereafter the charge-sheet was served on him and inquiry was held. At the inquiry two witnesses Mr. N.C.Barot, Police Inspector, Navrangpura and Inspector Mr.Zala of Madhupura police station were examined. The petitioner had cross-examined each of them. In his defence he had examined his wife. A report was made by the Presiding Officer and the Deputy Commissioner of Police issued a show cause notice and ultimately the Deputy Commissioner after receiving his reply, passed an order removing him from service. At this stage, we need not enter into other details mentioned in the affidavit filed on behalf of the State.
(3) Mr. S.K.Zaveri, learned advocate for the petitioner, raised the following contentions in support of the petition:
(1) The order of removal passed by the Deputy Commissioner of Police was without authority, illegal and void on two counts :
(a) The order of removal violates the provisions of clause (1) of Art. 311 of the Constitution of India inasmuch as the petitioner was appointed by the District Superintendent of Police at Surat and was removed by the Deputy Commissioner of Police at Ahemedabad who was a subordinate authority to the District Superintendent of Police at Surat.
(b) Under the Bombay Police Act No. XXII of 1951, the Deputy Commissioner of Police had no authority in inflict punishment of removal.
2(a) The punishment of removal can be inflicted under S. 25 of the said Act cruelty, perverseness, remissness, negligence, or unfitness, only if such acts or conduct were found to have been adopted in the discharge of his duty and not otherwise.
(c) Even assuming that the act complained of amounted to a breach of discipline, even then the only punishment that can be inflicted under S. 25(1) of the said Act is of fine and not of removal from service.
(2) The order of removal is bad because there is insufficiency of evidence and the inference drawn therefrom is incorrect and the factum of the charge is not established.
(3) Even if it is assumed that the petitioner had gone on hunger-strike that act not amount to breach of discipline under the Act or the Rules made under the Act.
(4) In any case, the punishment is too harsh and is out of proportion to the guilt found and violates the principles of natural justice as only such punishment must be inflicted as in a properties to the offence.
We propose to consider the contentions raised in behalf of the petitioner seriatim.
(4) The first part of the first submission raises a contention of violation, of the principles of the Constitutional provisions of Art. 311 (1) which reads as follows:
' 311. (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a state or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed'. Before we consider the position of law, it is necessary for us to first ascertain the manner in which the petitioner has raised this contention in his petition and how it has been met by the opponents in their affidavit. In para.17 of the petition, it is averred to the effect that he was appointed to the post by the District Superintendent of Police who was the highest authority in the district police force and the Deputy Commissioner of Police, Divisions, Ahmedabad is not the highest authority in Ahmedabad and as such he could not remove the petitioner from service. The Deputy Commissioner of Police had, therefore, contravened the provisions of Art. 311(1) of the Constitution of India in removing the petitioner from service. So the only contention that is raised is that as the appointing authority, the District Superintendent of Police at Surat was the highest authority in the district police force and the removing authority, the Deputy Commissioner of Police at Ahmedabad was not such highest authority but was subordinate to the Commissioner, the Deputy Commissioner must be held to have contravened the provisions of Art. 311(1). In the return field on behalf of the opponents in Para 21, this contention raised by the petitioner has been challenged. It is denied that the then Deputy Commissioner of Police, Ahmedabad was not a competent authority to remove the petitioner. After the appointment of a Police Commissioner in the city of Ahmedabad, the post of the District Superintendent of Police was abolished. It is also definitely mentioned in the affidavit in the said Para that the rank of a Deputy Commissioner of police is equivalent to that of District Superintendent of Police; and therefore, there was no violation of the constitutional provision. In the rejoinder filed by the petitioner, the only thing that he has stated is that the Deputy Commissioner of Police was not the head of the division and was a subordinate to the Commissioner of Police, while the District Superintendent of Police was not subordinate to the Commissioner and his immediate superior is the Inspector General of Police as that of the Commissioner.
(5) Mr.Surti, the learned Assistant Government Pleader, appearing for the opponents urged that the petitioner has not specifically averred in his petition that the Deputy Commissioner was an authority subordinate to the District Superintendent and as the specific averment in the affidavit filed by the Commissioner that the Deputy Commissioner and District Superintendent of Police are of the same rank, in not challenged at all, the Court need not enter into the question as to whether the Deputy Commissioner of Police was a subordinate authority to the District Superintendent of Police or not and whether the constitutional provision was contravened or not because an authority equivalent in rank can remove a civil servant and that position of law was also not challenged. It is true that the petitioner has not specifically taken the contention that the Deputy Commissioner of Police is subordinate authority to the District Superintendent of Police and has also not challenged the averment that these two authorities are equal in rank. But in our opinion, that does not mean that no necessity arises in this case to determine the question as to whether the impugned order violates the provisions of Article 311(1) or not because the petitioner has raised the point that the District Superintendent of Police was the highest authority in the district and the Deputy Commissioner of Police was not so and was subordinate to the Commissioner and, therefore, there was contravention of Art. 311(1) when the Deputy Commissioner passed the order or removal. Impliedly, therefore, he does aver that because of this difference in position of the two officers concerned, Deputy Commissioner is a subordinate authority. But while dealing with this question, we shall certainly keep in mind that he has not denied the fact that both of them are of equal rank. The question, therefore, that arises for determination is whether the Deputy Commissioner of Police at Ahmedabad is an authority who can be considered to be a subordinate authority to the District Superintendent of Police at Surat to the District Superintendent of Police at Surat and if so whether his act of removing the petitioner contravened Art. 311(1) or as alleged by the opponents because they are of equal rank, the provisions of Art. 311(1) are not contravened.
(6) Before we deal with the facts of the present case and before we attempt to determine the true scope of the constitutional provision and the proper construction of the word 'subordinate' used therein, it will be expedient to examine as to whether the decisions cited before us on behalf of the petitioner come to his aid. M.Zaveri first cited N.Somasundaram v. State of Madras, (S) AIR 1956 Mad 419. In that case it was decided that where an authority higher than the one entitled under the statutory rules to order an appointment, in fact orders a valid appointment, it is the factum of that appointment that controls the scope of the guarantee conferred by Art. 311(1) of the Constitution and, if such a civil servant is dismissed or removed from service by an authority, no doubt, competent under the rules to order the appointment and also to order dismissal, which, however, is lower in rank than the authority which in fact ordered the appointment such an order would contravene the provisions of Art. 311(1) of the Constitution. In our view, this ruling has no application to the facts of this case.
(7) The next authority cited on behalf of the petitioner is Sobhagmal v. State . In that case, the applicant was held to have been appointed in the state of Jaipur in the Customs and Excise Department. After the State of Rajasthan on 31st August 1951, the Divisional Assistant Commissioner, Customs and Excise gave the applicant a charge-sheet containing three charges against him, and after an enquiry the applicant was removed by an order dated 29th July 19523 and that order was being challenged in the Rajasthan High Court. On these set of facts the learned Judges observed that what Art. 311(1) provides is that the authority should not be subordinate in rank to that by which the appointment was made. The dismissing authority should be at least coordinate in rank with the appointing authority, and should not be subordinate in rank. Thus, if a person is appointed by a Head of Department and he is transferred to another department be can only be dismissed or removed by the Head of the other department. The learned Judges further observed that Art. 311(1) contemplates that the authority appointing and the authority dismissing must be an authority of the same State. Where, however, s in the case of Rajasthan, the position there has been a merger of a number of former States to form the present State of Rajasthan, there has been a merger of a number of former States to form the present State of Rajasthan, the position is different. In such circumstances the dismissal or removal can be made by an authority subordinate in rank of to that which appointed a civil servant ion integration in the State of Rajasthan. This decision, therefore, firstly lays down that while deciding the question as to which is the subordinate authority, the question of rank is the deciding factor. Later on this decision deals with the special facts of that case; that is, of a civil servant belonging to an old State becoming the servant of a new State after Independence and no order of fresh appointment was made after the merger. There the learned Judges decided that if there was no fresh order of appointment of such an officer in the new State of Rajasthan, then the questions can be decided on the basis as to who would have appointed him in the State of Rajasthan if he had been brought into the integrated set-up. If the first test laid down by the Rajasthan High Court were the only criterion to be adopted, then the petitioner's petition should stand dismissed on that very finding, because there the criterion of rank had been adopted and it was held that the appointing authority should not be a subordinate authority in rank, but he must at least be a co-ordinate authority in rank. As we have already pointed out, this fact of the District Superintendent of Police at Surat and the Deputy Commissioner of Police at Ahmedabad being of equal or co-ordinate rank has not been deputed by the petitioner.
(8) The next case is Ramachandra Gopalrao v. D.I.G. of Police : (1958)IILLJ414MP . On facts, it appears it was a similar case the one with which Rajasthan High Court had to deal with, that is to say, the petitioner was first a servant of one of the old States in India which ultimately merged into the State of Madhya Pradesh. He was in the Police Department. The learned Judges dealing with Art. 311 decided that Art. 311 cannot be read as implying that the removal must be made by the very same authority who made the appointment or by his direct superior and that it is enough if the removing authority is of the same rank or grade. The subordination of the authority dismissing or removing a civil servant must be in respect of rank and in respect of functions. The authority making the appointments cannot be delegate the power of dismissal or removal so as to destroy the protection afforded by the provisions so that the dismissal of a civil servant by an authority subordinate to that by which he was appointed would be unlawful and inoperative even if the subordinate authority was authorised under the rules to dismiss the civil servant. It is the rank of the person actually appointing the civil servant that is material and the subordination of the appointing and dismissing authorities must be decided with reference to their rank and not functions, then the safeguard afforded by Art. 311 of the Constitution can at any time be wiped out and destroyed by rule under Art. 309 vesting the power of dismissal in a subordinate authority which is subordinate in rank in the authority which appointed the civil servant. The High Court of Madhya Pradesh also seems hold that 'rank' held by the two officers is the criterion to determine the question as to whether the removing authority is a subordinate authority or not. In doing so, however, the learned Judges have stressed the point that the element or factor of 'functions' to be performed by such removing authority can under no circumstances be taken into account in determining the question of subordination. This view that the 'functions' performed by an officer can never be one of the factors to be considered in deciding the question of subordination, appears to have been taken only from one angle, that is that if subordination is taken in regard to 'functions', then the safeguard afforded by Art. 311(1) of the Constitution can be set at naught by delegation of powers of dismissal or removal and in fact by doing so an officer holding a much lower rank could be said to be authorised to remove a person who has been actually appointed by a person much higher in rank. It may be that from this particular aspect, the question or factor of 'functions' may not form a proper criterion to decide the question of subordination; but with very great resect to the learned Judges if any universal criterion is intended to be laid down that the factor of functions can never be taken into account while determining the questions of subordination, we hesitate to accept it. This view, in our opinion, would require a more comprehensive inquiry before it can be accepted s conclusive. The learned Judges later on in their decision dealt with the question of a civil servant who had been absorbed in another State, as was the case before them and they have observed that in the case of civil servant of a State, which was merged, united or absorbed in another state, under Art. 311(1) subordination of the dismissing authority has to be determined with reference to the position in the new State of the authority which appointed the civil servant. It was held that in such cases the subordination of the dismissing authority must be determined with reference to that authority in the new State which is equivalent or co-ordinate to the authority which appointed the civil servant concerned in the old State. While deciding this latter question, the learned Judges of the Madhya Pradesh High Court dissented from the decision of the Rajasthan High Court from the decision of the Rajasthan High Court which we have referred to above. With that particular controversy we are not concerned in the case on our hand. These conclusions reached by both High Courts were in peculiar facts of that case of a servant of another State having been absorbed later on in a new State into which the old State had merged.
Mr.Zaveri all throughout his argument tried to urge we should adopt the test applied by the Madhya Pradesh High Court which they did while deciding the particular question of a civil servant of the old State which has merged into the new State, that is to say, that the dismissing authority must be equivalent or co-ordinate authority to the appointing authority. On going through this decision carefully, we find that the learned Judges do not seem to lay down any universal criterion which would govern the case of all servants even servants of some states or in same department. On the contrary, there is no manner of doubt in our mind that when Madhya Pradesh High Court said:
'there can be no escape from the conclusion the subordination of the dismissing authority must be determined with reference to that authority in the new state which is equivalent or co-ordinate to the authority which appointed the civil servant concerned in the old State'.
They only lay down the test which was meant for application in the case of a servant who belong to one State which has merged into another State and in the new State there was no fresh appointment. Therefore, they had differed from the findings of the Rajasthan High Court which laid down that the criterion should be to find out which was the authority who could have appointed him, if that servant had been first appointed in the State of Rajasthan. Once again, this particular authority, therefore, can be of no help to the petitioner at all. On the contrary in our view, as it definitely lays down that the criterion for decision of the question of subordination, is 'rank', which if accepted by us put him out of Court.
(9) Mr.Zaveri then drew our attention to the decision of Mahesh Prasad v. State of Uttar Pradesh : 1955CriLJ249 . There their Lordships while dealing with arguments under Art. 311(1) have observed that the said Article and Rule 1705 (c) of the Railway Establishment Code cannot be read as implying that the removal must be by the very same authority who made the appointment or by his direct superior. It is enough that the removing authority is of the same rank or grade. In that case, their Lordships were dealing with a question of sanction required for a Government servant being prosecuted under the Prevention of Corruption Act and the question was that the sanction must be of the authority 'competent to remove the appellant from his office'. Now, it is important to not e that this case deals with the question of a servant belonging to the same department. It is also important to note that in the opinion of their Lordships, rank or grade as the criterion to determine the question as to who is the competent authority to remove the servant under Art. 311(1) within the meaning of the word subordinate. So this case also appears to lay down that generally speaking the criterion for deciding this question of subordination is whether the removing authority is of the same 'rank' or 'grade' as the appointing authority. This certainly does not help the petitioner.
(10)The next decision placed before us for our consideration is Ramratan Balchand v. State of Madhya Pradesh : AIR1964MP114 . While dealing with Art. 311, the learned Judges have said that in view of Art. 311(1) of the Constitution a civil cannot be lawfully dismissed by any authority subordinate to that by which he was appointed. A protection like the one given by Art. 311(1) cannot betaken away even by rules framed either Art. 309 or under any relevant statute. In Art. 311(1) the word 'subordinate' had reference to the 'rank' and not to 'functions'. The clause does not, however, require that the dismissal must be ordered by the same authority who made the appointment or his direct superior. There is sufficient compliance with the requirements of this clause if the dismissing authority is of the same rank or grade. This decision, therefore, does not decide any new principle. It only reiterates the principles that have been laid down by the authorities which have already referred to and as such is of no help to the petitioner.
(11) In Anukul Chandra Mondal v. Commr. Of Income Tax, West Bengal, AIR 192 Cal 3,it has been observed that under Art. 311(1) of the Constitution, a civil servant cannot be dismissed or removed from service by an authority subordinate in rank to the authority appointing him. This subordination refers to 'rank' and not subordination in respect of 'powers' and 'duties'. It does not, however, follow that a civil servant should always be removed by a person higher in rank to the original appointing authority. It may so happen that he may be transferred from one department to another, which is a department completely independent of the department in which he was originally appointed. In such a case, if he was originally appointed by the head of one department, he cannot be removed except by a person not lower in rank to the head of the department to which he is transferred. Mr.Zaveri relied upon the latter part of the observations of the learned Judges. But it can be seen that the learned Judges made it clear that the question of removing authority being also a head of the department would only arises where the civil servant is transferred from one department to another. The first part of the decision of this ruling also makes it clear that in the ordinary circumstances, if no question about transfer of servant from one department to another arises then the criterion is of rank. From the observations made by the learned Judge it appears that in the view the criterion to determine the question of which is the subordinate authority is only 'rank' and not 'powers' enjoyed and 'duties' cast. But once again we would like to observe here that we would desist from arriving at such a categorical conclusion without a thorough examination of the aspect from all angles, that in no circumstances the question of power or duties can be taken into consideration while deciding the question of subordination. In our view, certain set of facts may confront a Court it may be that factors like 'power' or 'function' or 'duty' may have to be given a greater emphasis than that of 'rank' while deciding this question of subordination. It may not be safe to rule out such a possibility. However, have made these observations only for the purpose of showing that we may not be taken to be in agreement with that part of the judgment of the learned Judges. This ruling also not only does not help the petitioner but it helps the other side.
(12) The next decision referred to was Madanlal Chawla v. Principal Harcourt Butler Technological Institute, Kanpur : AIR1962All166 , That was also a case where an employee had been transferred from one department to another. While dealing with the question under Art. 311, it is said that in cases where either an employee has been transferred from one department to the other or a new head of the department is created, the principle that appointing authority can only take disciplinary action will not apply. If a department was at one time under one officer but at some time later it was transferred to another head then at that stage it is the head of the department to which the employees has been transferred who alone would be entitled to take action and the department from which he has gone away will have nothing to do with him any longer in future. It is not the very same officer who made the appointment who should take proceeding or dismissal. He can be an officer either equal or higher in rank and he need not be his immediate superior officer. It is only if the appointing authority is still in the same department, he alone can take disciplinary action. Then in the peculiar facts of the case, he learned Judge held that the only reasonable and proper interpretation of Art. 311 in that after a sub-department is made as the head of department then the head of that department would be the appointing authority. With this part of the decision and conclusion reached we have nothing to do. The decision was based on the peculiar facts of that case. We, therefore, do not find that there is anything in this decision which can help he petitioner.
(13) On behalf of the opponents, the learned Assistant Government Pleader brought to our notice the decision in Gurumukh Singh v. Union of India AIR 1963 Punj 307, wherein also Art. 311(1) came up for construction. There it has been held that the word 'subordinate' in Art. 311(1) of the Constitution means subordinate in rank and not with reference to the 'function' exercised. Consequently, when no office of equal rank to the appointing officer is available then the order of dismissal or removal will have to be passed by an officer of superior rank. In no circumstances can such an order be passed by an officer of lesser rank. Any rule or statute which permits such an action must be held to be ultra vires as infringing the provisions of Art. 311(1) of the Constitution, it is obvious that in the said case also the learned Judge applied the test of rank while deciding the question of subordinate authority. They have also expressed themselves while applying this test of rank that the question of subordination cannot be decided with reference to functions exercised. As observed herein before we may only mention that so far as this particular observation is made by the learned Judge we may not be taken to agree with them. This case, therefore, goes to support the case of the opponents.
(14) The next decision relied upon on behalf of the opponents is Laxminarayan Sarangi v. State of Orissa AIR 1965 Orissa 8. There it has been held that the word 'subordinate' occurring in Art. 311(1) has reference to subordination in rank and not subordination in respect of 'powers' and 'duties'. Article 311(1) cannot be real as implying that the removal must be by the very same authority who made the appointment or by his direct superior. It is enough that the removing authority is of the same rank or grade. Once, again, the criterion of rank has been adopted in preference to the elements of powers and duties. They also seem to be of opinion that the elements of duty and powers are not to be taken into consideration for deciding the question.
(15) The next authority referred to by the learned Assistant Government Pleader was R.T.Rangachari v. Secy. of State . This was not a case under Art. 311(1) of the Constitution. It was a matter under S. 96B of the Government of India Act, 1919 wherein similar provisions were made. Their Lordships have held that the stipulation or proviso as to dismissal in S. 96B is itself of statutory force and stands on a footing quite other than any matters of rule which are of infinite variety and can be changed from time to time. Dealing with this aspect, their Lordships held at page 30 of the report as follows:
'The purported dismissal of the appellant on 28th February 1928 enacted from an official lower in rank than the Inspector General who appointed the appellant to his office.'
and then proceeded to consider other facts of the case. The learned Assistant Government Pleader was justified in submitting that the criterion of 'rank' was also accepted by Their Lordships of the Privy Council.
(16) Parameshwar Dayal v. State was also relied upon on behalf of the opponents. In the said case dealing with Art. 311, it has been said that in determining as to who can be considered competent to remove a Government servant, the requirements of Art. 311 of the Constitution must be given the consideration. It is well settled law that where an authority higher than the one entitled under the statutory rules to order an appointment in fact orders a valid appointment it is the factum of that appointment that controls by Art. 311(1) of the Constitution and if conferred by Art. 311(1) of the Constitution and if such a civil servant is dismissed or removed from service by an authority, no doubt competent under rules to order appointment and also to order dismissal which however, is lower in rank than the authority which in fact ordered the appointment, such an order would contravene the provisions of Art. 311(1) of the Constitution. In this case also, therefore, 'rank' w considered to be a criterion to determine the question of subordination in Art. 311(1).
(17) The last authority referred to an behalf of the opponent was State of Kerala v. Madhavan, AIR 1962 Ker 50. In the said case also criterion of rank was adopted ass s correct criterion to determine the scope of Art. 311 in considering the question of competent authority.
(18) The impression that we gather from all the authorities cited before us is that hey are decisions where the scope of Art. 311(1) was mostly examined in the light of the particular facts of those case and the observations made were not intended to and indeed they cannot have the effect of laying down any universal or all-embracing construction on the words 'authority subordinate to' of Art. 311(1) that can be said to apply to all possible cases of removal or dismissal of Government servants. Art. 311(1) is a general provision intended to give protection to al those who are employed in Government service, either in the centre or a State and who are civil servants or hold civil posts all over the country and in any of the departments. It is also intended to govern the cases of Government servants originally employed in one department and who may be transferred o another department or from the State service to the Centre or form one State to another. It is proper, therefore, to infer that the words 'authority subordinate to' would not only one directly subordinate or that removing authority must be a direct superior to the appointing authority. This view is also taken by some of the authorities to which we have referred to. The word 'subordinate' has, therefore, necessarily to be given a wider connotation. The Legislature appears to have intentionally left the word uncircumscribed by any other words such as 'in power' 'in position', 'in rank' or some such other qualifying phrase, to enable the Court to take into consideration the facts of individual cases to judge as to whether the removing or dismissing authority is in fact subordinate to the authority that appointed a particular individual. In our judgment, it is not possible to lay down any single or universal test. In determining the question as to who can be called the subordinate authority the question has to be answered by the Court keeping in mind the facts of each case which may emphasise one or the other of the elements of the general concept of subordination. As we have seen in the decided cases the concept of subordination has to be mostly judged from the point of view of rank or grade but sometimes it has to be judged even from the point of view as to whether the removing authority is the head of a department just as appointing authority was a head of his department. In our opinion, in a peculiar set of facts the question may have to be answered from the point of view even 'function' or 'powers' to be exercised by the respective officers. But in this case we do not find ourselves called upon to directly decide this point, we have not entered into a detailed discussion thereof or to come to define conclusion thereon. We have rested satisfied by expressing ourselves hereon that it would not be safe or correct to categorically lay down that the element of 'power' or 'function' or being head of the department can never be the 'test' for the decision of this moot question in a given set of facts without examining the question from all view-points.
(19)The majority of the decided cases have laid down that 'rank' or 'grade' is the criterion or test to be adopted, particularly when the civil servant was appointed and removed by officers belonging to the same department or set-up, as is the position in the present case and with respect we agree with that view. If the servant was either transferred to a different department or from one State to the Centre, different considerations may arise. As observed above, the authority at Ahemdabad who can called equivalent authority to the District Superintendent of Police at Surat. We have already pointed out that the said test had to be adopted in that case in the peculiar set of facts of that case. It can have no application to the present case. In the present case, in our judgment, rank necessarily becomes the criterion for deciding the question as to whether the Deputy Commissioner of Police at Ahmedabad had the authority to remove the present petitioner or not. In our view the fact of he District Superintendent of Police being the highest authority in the district and the Deputy Commissioner of Police not being so in the City of Ahemedabad does not make the deputy Commissioner an authority subordinate to the District Superintendent of Police. The criterion of both the appointing and removing authorities must be the heads of the department or division can also not be adopted in the present case. In the present case there is positive evidence on the record to be found in the affidavit filed on behalf of the opponents that the District Superintendent of Police and Deputy Commissioner of Police are of the same rank and this position has not been controverted by the petitioner. Though the facts of the present case are not entirely parallel to the facts of the various decisions that we have discussed herein above, in our judgment, the fact of 'rank' receives greater emphasis and is the proper criterion to adopt in this case as was done in the said decisions. We, therefore, hold that the Deputy Commissioner of Police is not a subordinate authority to the District Superintendent of Police. He had the authority to remove the petitioner and, therefore, there is no contravention of Art. 311(1) of the Constitution.
(20) This brings us to the consideration of the second art of the first submission of Mr. Zaveri. The contention is that the sub-s. (1) of S. 25 of the Bombay Police Act given authority to suspend, reduce, dismiss or remove, to only those officers who are mentioned specifically in sub-s (2) thereof. It is urged that the Deputy Commissioner is not one of the those mentioned in sub-s (1) and, therefore, the impugned order passed by the Deputy Commissioner of Police is ultra vires of S. 25 of the Bombay Police Act. we shall hereinafter refer to this statute as 'the Act'. It is true that if S. 25 is to be read by itself, the Deputy Commissioner cannot be held to be authorised to pass an order of removal because he nowhere pictures in sub-s (2) of S. 25 and sub-s. (1) of S. 25 definitely states that any officer who is authorised by sub-s. (1) will have the right or authority to exercise these powers including the right of removal. But we are not able to agree with Mr.Zaveri that in deciding this question the only section which we have to take into consideration is S. 25 and not any other provision even in this very same Act. he has to resort to this submission because of S. 10 of this Act. Section 10 provides that the State Government may appoint one or more Deputy Commissioners or Assistant Commissioners of Police in any area in which the Commissioner has been appointed. It also provides that every such Deputy Commissioner or Assistant Commissioner shall, under the orders of the Commissioner exercise and perform any of the power of the Commissioner to be exercised or performed by him under the provisions of this Act or any other law in accordance with the general or special orders of the State Government made in this behalf. The Legislature, therefore, in its wisdom while enacting this law thought it necessary to also make provision in the same statute enabling delegation of the powers of the Commissioner to the Deputy Commissioner or Assistant Commissioner as the case may be under general or special order by the State Government. Therefore, it is obvious that if S. 10 is read with S. 25, we cannot reach any other conclusion but this that under S. 25 when the Commissioner is authorised to exercise certain powers, he is entitled under S. 10 to delegate them to his Deputy Commissioner subject to order of the State Government. Reading these two sections together, there can be no doubt that his power of 'removing' vested in the Commissioner. It would be exercised by the Deputy Commissioner. It would be unreasonable to assume that if the Legislature while enacting this Act had any idea of excepting S. 25 from the overall effect of S. 10 which is in general terms, then it would have so provided either under S. 10 or S. 25. It is true that the Legislature need not necessarily do so and S. 25 by itself might either directly or impliedly exempt itself from the application of S. 10. But we do not find any such words or intention implicit in the language of S. 25. It is all the more so when we consider the provisions of S. 10. Where the Legislature intended to except certain powers vested in the Commissioner from being delegated under the operation of S. 10, then it has carved them out in clear terms by adding proviso to the section. It is quite reasonable, therefore, to hold that Ss. 25 was not intended to be excepted from the application of the effect of the provisions of S. 10. When the Legislature has made to different provisions in the same Act which have a bearing on the same question, then the two have to be read harmoniously. Apart from that event the languages of S. 25 also helps up to come to that very conclusion because in S. 25, sub-s. (1) the word used is 'authorised'. It appears that this word has been advisedly used by the Legislature instead of using the words of narrower connotation such as 'mentioned' specified' or 'designated' which words may possibly imply an intention on the part of the Legislature to exclude the operation of S. 10 while dealing with S. 25. The word used is 'authorised' and the authority so vested in the officer mentioned in sub-s (2) is again intended to be delegated by the specific provisions of S. 10. Taking into consideration the language used in both the sections we are of the view that there is nothing therein to come to the conclusion that the Commissioner could not delegate to the Deputy Commissioner such authority under the provision or S. 10 of that Act. We do not find, therefore, any force in this submission made on behalf of the petitioner.
(21) We shall now take up for consideration the second submission made on behalf of the petitioner.Mr.Zaveri had divided this submission also in two parts and we shall deal with them in that order. It was urged firstly that the punishment under S. 25 of the Act for breach of discipline can be meted out only if found to have been committed in the discharge of his duty and not otherwise. It was argued that in this particular case the petitioner was actually on leave on that day and the act about which he has been punished w not done by him in the discharge of his duty and, therefore, the order inflicting the punishment is ab initio bad. The construction tried to be placed by Mr. Zaveri on the section is too narrow a construction. In our view, the words 'in the discharge of his duty' only govern the words 'any acts which render of his duty' and not the words 'breach of discipline or misconduct'. The 'breach of discipline' need not be the discharge of his duty' to attract the penalty contemplated by S. 25. it is difficult to accept the reasoning behind the contention that merely because a police constable happens to be on leave, even if he commits any breach of discipline he cannot be dealt with under S. 25 of the Act. A police constable on casual leave is also bound to follow the rules of discipline of the service. It would not, therefore, be unreasonable to also assume that the intention of the Legislature in enacting the provisions is to empower the authority to deal with all constructions tried to be put up by the petitioner. The section if accepted, defeats the very purpose for which the provision is made. The contention, therefore, fails.
(22)The next part of the second submission was placed by Mr.Zaveri in this way; that sub-s (1) of S. 25 consists of two distinct provisions and they are mutually exclusive. In order to understand this contention, it is necessary to quote the two parts as placed before by Mr.Zaveri. The first part of sub-s (1) of Section 25 is :
The State Government or any officer authorised by sub-s (2) in that behalf may suspend, reduce, dismiss or remove an Inspector or any member of the subordinate ranks of the Police Force whom he shall think cruel, perverse, remiss or negligent in the discharge of his duty or unfit for the same'.
The second part consists of the following words:
'and may fine to an amount not exceeding one month's pay, any member of the subordinate ranks of the Police Force, who is guilty of any breach of discipline or misconduct or any act rendering him unfit for the discharge of his duty, which does not require his suspension or dismissal'.
It is submitted that the first part authorises the State Government or any other officer authorised by sub-section (2) to suspend, reduce, dismiss or remove an inspector or any member of the subordinate ranks of the Police Force who in its opinion is greatly remiss or negligent or found unfit in the discharge of his duty, while the second part of the sub-section according to Mr.Zaveri provides that the State Government or any officer authorised by sub-section (2) is empowered to fine, to the extent of an amount not exceeding one month's pay, any member of the subordinate rank of the Police Force who is guilty of breach of discipline or misconduct or any act rendering him unfit for the discharge of duty which does not require his suspension or dismissal. As an extension of his submission, Mr.Zaveri argued that the result of reading of this sub-section in parts in the manner in which he wants us to, is that the provision for removal falls only in the first half of that sub-section and that punishment was available only where the delinquent was found to be greatly perverse, remiss or negligent in or unfit for the discharge of his duty. This punishment according to him could not be extended to a case of misconduct or breach of discipline, because that falls in the second part of this sub-section, where the Legislature intends only a fine to be inflicted as punishment. According to Mr.Zaveri, power to suspend, reduce, dismiss or remove is only co-related and to the working of the first part of that sub-section and to the five categories of delinquents mentioned in that first half of that sub-section. It was submitted that if the section is however read to extend the power of removal to the latter half or the second part of that sub-section also, then it does violence to the languages of the section. It was further argued that the words at the end of the sub-section (1) 'which does not require his suspension or removal' only qualify the words 'unfit for the discharge of his duty' and not the words 'breach of discipline or misconduct'. According to the learned advocate, the result is that authority could only punish with fine a police office of the lower rank who is found guilty of any breach of discipline or misconduct or such unfitness for discharge of duty which did not require him to be suspended or dismissed under the first part of that sub-section. He contended that in this case the petitioner was found to have committed 'breach of discipline' and nothing further and, therefore, the authority had no power whatsoever to remove him for this guilt of his. As a further extension of his argument Mr.Zaveri urged that the second part of sub-section (1) is meant to carve out an exception and it does not mean to give an additional power. He pointed out that was the intention then after the word 'and' in the beginning of the second part as pointed out above, the word 'also' would have been used. With reference to this, he pointed out to us that in Rule 3, sub-clause (2) of the Bombay Police (Punishments and Appeals) Rules, 1956, we do find the word 'also:' when it was intended to confer additional power to fine.
The language of sub-section (1) of sections 25 is certainly not as clear as one would like to be, and at first sight the arguments urged by Mr.Zaveri are likely to appear to be plausible. But a careful reading of the section disclose that there is no merit in the submission of Mr.Zaveri and if the interpretation as he wants us to put on this section were to be accepted very strange results and conclusions would follow. If the sub-section is read in two parts as has been urged before us, then one finds that though an Inspector a higher officer, in rank than the police constable would be liable to be dismissed or removed for the mere offence or remiss, or negligence in the discharge of his duty, but a police officer of the lower rank can only be punished for a higher offence of misconduct with fine only. Again a police constable though for mere remiss or neglect of duty can be dismissed or remove but for misconduct he could only be fined up to one month's pay. Furthermore, a police Inspector can never be punished at all by Government or any officer even with fine for any misconduct or breach of discipline, because he does not appear as one of the offences in the first part. It does not stand to reasons that the Legislature intended to provide only a small fine as punishment for offence like misconduct or indiscipline which would include in our view cases of much more serious nature than mere negligence or remiss and provides the extreme penalty of dismissal or removal for mere negligence or remiss. In our view, such an interpretation would lead to absurdity and the rules of interpretation do not permit ascribing such an intention to the Legislature. In our view, even if the sub-section can be said to have two parts, they are not to read as mutually exclusive. But the second part is complementary to the first, that is to say, the second part provides for cases of breach of discipline or misconduct on the part of the officers of the subordinate rank and the authority empowered under sub-section (2), is also enabled to levy fine in lieu of or in addition to the punishment that can be inflicted under the first part of the sub-section, subject to the restriction that in the case of breach of discipline or misconduct which was so gross that it may require, suspension or dismissal and if he was suspended or dismissed then find could not also be levied. In our view, the words at the end of sub-section 'which does not require suspension or dismissal' do not govern only the words 'unfit for the discharge of the duty', but also govern the words 'breach of discipline or misconduct'. The so-called second part of sub-section (1) is an enabling provision with the only restriction created by the words 'which does not require suspension or dismissal'; it is true that the words, 'remove or reduce' do not appear in this last portion of the second part. But reading the section as above, it is quite reasonable to infer that where a man is dismissed with the consequence that he will never be eligible for employment even in other services of the Government, it is intended that he may not be further punished with fine and cause him further monetary loss. Similarly, in the case of suspension, he suffers monetary loss by that very punishment and it is intended not to inflict a further financial loss. The very use of the words 'which does not require suspension or dismissal' at the end of the second part of the sub-section also clearly shows that the breach of discipline or misconduct may also be punished with dismissal or suspension because it provides that fine also may be awarded in case of misconduct or breach of discipline except in cases of misconduct or breach of discipline that may require dismissal or suspension. This, in our view, shows that the two parts are not mutually exclusive but complementary to each other. The construction put by us is also more in consonance with the intention of the Legislature to give authority to the officers mentioned therein by the Government to mete out adequate punishment for all the offences mentioned therein in the sub-section and avoids the absurd results as pointed out hereinabove. Mr.Zaveri suggested that the word 'misconduct' should not be used in its ordinary connotation and 'misconduct' here is used in a very limited sense of mere minor misconduct on the part of the police constable. We have no reason to construe this word 'misconduct' that way. Breach of discipline or misconduct is as serious an offence as any other offence contemplated by that section.
(23) Mr.Zaveri then urged that in the first part of this sub-section each of the defaults mentioned therein, that is to say, being cruel, perverse, remiss or negligent or unfit for discharge of duty, contemplates a long course of conduct on the part of the delinquent. In other words, a police officer before he could be held guilty of being perverse, negligent, cruel or unfit, several instances of such defaults have to be established, to constitute the guilt of neglect, perverseness, cruelty or unfitness. As delinquencies of a serious nature which arise out of a long course of conduct of the delinquent is dealt with by the first part, more severe punishments of removal, suspension and dismissal are provided by that part. But according to the learned advocate the second part only deals with the defaults of the nature of breach of discipline or misconduct, each of which contemplates only a single act of default or the part of the delinquent police officer and, therefore, only fine is prescribes. We hardly find any merit in this submission. We have no reason whatsoever to read this section in this way. Even one act of misconduct on the part of the police officer of accepting a bribe is as serious an offence as of negligence, collectively, in a dozen instance committed by him. It cannot, therefore, be said that such misconduct is to be visited with the punishment of only a fine not exceeding even the amount of one month's pay. Again, the Inspector does not picture in the second part of this sub-section at all, and if the interpretation placed by Mr.Zaveri is accepted, then even if he were to take a large bribe he cannot be punished at all, in the category of misconduct. He cannot be even fined nor can he be dealt with under the first part as amounting to misconduct because 'misconduct' does not appear in the first part of the sub-section (1). Again it is a wrong assumption to make that one serious act of negligence or cruelty in the discharge of duty cannot be considered to be 'neglect' or 'cruelty' which would justify his dismissal or removal. We, therefore, are unable to accept the interpretation tried to be placed by Mr.Zaveri at the fag end of the argument that he submitted before us on this point. We reject the contention that the punishment of removal for the act of breach of discipline could not be inflicted under section 25.
(24) The next contention of Mr.Zaveri is that the charge of his going on hunger strike has not been established. He urged that the facts placed regarding the inquiry on behalf of the State and the facts found to have been established at the inquiry do not establish the charge of his having gone on hunger-strike. The finding, therefore, arrived at from these facts of the petitioner having gone on hunger-strike is perverse. There was no sufficient evidence even for drawing such an inference. In our view, this contention has no substance. If it were necessary for us to come to a conclusion on the question of fact, then in our judgment, there is enough evidence on the record to hold that he had the intention to go on hunger-strike and that he had gone to Sachivalaya on the 14th June 1960 for that object and had stayed there with that object. Considering the facts on record, it cannot be said that the inference drawn from those facts, by the presiding officer as well as the appellate and revising authorities, is perverse. These are questions of fact and under our jurisdiction under Art. 226, they do not fall within our inquiry unless patently it can be made out that there is total want of evidence or there is such want of evidence that the inference reached could not have been reached by any reasonable tribunal. In our view, this is not such a case and we reject this contention.
(25) The next contention urged by Mr.Zaveri is that the act of going on hunger-strike does not amount to breach of discipline at all. According to Mr.Zaveri, discipline is to be governed by some positive rules laid down in a code of conduct. If the petitioner was not even on duty at the time when the act is complained to have been committed and if he only stayed there declaring his intention to go on hunger-strike, it cannot fall within the connotation of the word 'breach of discipline' under section 25(1). The police force in the country is the most important limb of the Government to give protection to the subject and to preserve law and order. A police constable belongs to a highly disciplined force and discipline is the very core of that service. A police is officer is supposed to be on duty at all times and has to maintain the discipline and cannot content that he was on casual leave when he committed a breach of discipline. If the member of the police force were to resort to the instrument of going on hunger-strike to redress any real or imaginary grievance, in the whole of the police force would be disorganized; not only that but such acts if permitted would kindle the flames of dissatisfaction in the whole force. Discipline in the police force is certainly to be looked at from a different angle and strictly possible connotation has to be attached to the word 'discipline ' when it deals with the conduct of a police officer. The evidence disclosed that the petitioner had declared his intention to go on hunger-strike to no less a person that the Chief Minister of the State. In order to carry out this object, he had taken casual leave under the excuse of his wife being sick. He went to the spot as was shown in that letter and he stayed there for the whole day. There is no evidence that a police officer had come to know that he had carried on a propaganda in the police force that he was going to go on hunger-strike at the Sachivalaya. He then did go to Sachivalaya as declared by him and sat there at the entrance. When the police officer went to inquire about it, the petitioner declared to him that he was on hunger-strike as his grievances were not redressed. In the light of these and other facts on record, the presiding officer and the other officers came to the conclusion that this act of his amounted to gross breach of discipline. The act of going to the Sachivalaya and squatting there for the whole day, in the light of the facts disclosed on the record before the inquiry officer, do establish the charge. There can be little doubt that he resorted to this act with a view to bring pressure not only on his officers but also the highest authority of the State. When examined in the light of these facts and the service to which belongs, it is difficult to come to any other conclusion than this that the act of the petitioner did amount to breach of discipline. It has also to be noticed that section 25 of the Act contemplates subjective satisfaction of the authority concerned for determining as to whether the person charged with the breach of discipline did commit the wrong.
(26) The last contention raised by Mr.Zaveri was that the punishment meted out to him compared to the wrong done is harsh or entirely disproportionate and, under the principles of natural justice, the order of removal in any case should be quashed and the authorities should be directed to inflict some lighter punishments. The adequacy of punishments is necessarily a matter for the deciding authority to determine. It cannot be said that the deciding authority had committed any breach of principles of natural justice when it decided that this was such a breach of discipline as would necessitate the punishment of removal, nor do we think that looking to the facts discussed hereinabove this is a case where we could be justified in interfering with order in the exercise of the high prerogative jurisdiction of this Court.
(27) As a result of this reasoning and the conclusion that we have reached, none of the submissions or contentions raised on behalf of the petitioner survive and the petition is, therefore, dismissed. But in view of the facts as they exist, we pass no order as to cost.
(28) Petition dismissed.