N.H. Bhatt, J.
1. This is a petition by a Circle Police Inspector in the States's service, challenging the order of his suspension passed by the Deputy Inspector General of Police, Baroda Range on 30-11-78. The challenge is on four grounds, one of which is that the Deputy Inspector General of Police had no authority at law to pass the impugned order. The three other grounds that were alleged were that the order was made without making a preliminary enquiry and without there being any material before the said authority to arrive at a satisfaction about there being a prima facie case for suspension and the satisfaction spoken to by the Deputy Inspector General of Police in his affidavit-in-reply was only a camouflage to shield the true character of the order, which was passed because of the announcement made by the Home Minister of the State of Gujarat. The third ground was that the order was passed against the guidelines issued by the Government under their circular dated 8-7-70 and that the suspension was sought to be effected without obtaining the prior approval of the Chief Secretary of the Government, though under the aforesaid guidelines it was mandatory to do so. The last ground as that the order was passed mala fide in so far as the alleged dereliction of duty was not there, the duty to guard against the violation of the provisions of the Bombay Prohibition Act, 1949 being cast on the Special Unit floated by the Government in every district, the unit known as Task Force.
2. In my view, the first ground of attack is sufficiently strong to make me allow this petition and, therefore, I do not propose to go to other grounds.
3. A few facts require to be stated. There is a town Dabhoi in Baroda District, on 29-11-78, various untimely deaths were reported and the cause alleged was the consumption of denatured spirit notoriously known as 'Laltha'. The Minister in-charge of Home Affairs, Shri Popatlal Vyas, had at a press conference held on 29-11-78 declared that the Circle Inspector and the Police Sub-Inspector of Dabhoi were suspended. The following day, the Deputy Inspector General of Police, Baroda Range, had gone to Dabhoi, had conducted some on-the-spot inquiry, had passed the order of transfer of the petitioner to Baroda proper and had then passed the impugned order of his suspension. The petitioner had rushed to this court with a view to thwart the impending suspension before he could be served with that order and before the order could be implemented. During the course of the pendency of the proceedings before me, the impugned order was produced by the State and now it is made a part of the petition and it is this order, which is challenged in this petition.
4. As said by me above, one of the grounds of challenge is the lack of authority with the Deputy Inspector General of Police to pass the impugned order. In this connection reference was solicited to Rule 3 of the Bombay Police (Punishments and Appeals) Rules, 1956, hereinafter referred to as 'the Rules' for brevity's sake. These Rules, as the preamble shows, are made by the Government in exercise of the powers conferred by Clause (c) of Sub-section (2) of Section 25 read with Section 5(b) of the Bombay Police Act, 1951. Rule 3(1-A) which deals with suspension reads as follows:
3(1-A), (i) The appointing authority or any authority to which it is subordinate or any other authority empowered by the State Government in this behalf realty place a Police Officer under suspension where:
(a) an inquiry into his conduct is contemplated or is pending; or
(b) a complaint against him of any criminal offence is under investigation or trial:
Provided that where the order of suspension is made by an authority lower in rank than the appointing authority, such authority shall forthwith report to the appointing authority the circumstances in which the order of suspension was made.Explanation: The suspension of a Police Officer under this sub-rule shall not be deemed to be a punishment specified in Clause (a-2) of Sub-rule (1).
(ii) A Police Officer who is detained in custody whether on a criminal charge or otherwise, for a period long than forty-eight hours shall be deemed to have been suspended by the appointing authority under this rule.
(iii) An order of suspension under Sub-rule (1) may be revoked at any time by the authority making the order or by any authority to which it is subordinate.
5. It is no longer in controversy before me that the Deputy Inspector General of Police, who has passed the impugned order, is not the authority that had appointed the petitioner. It was also forthwith conceded by the learned Assistant Govt. Pleader before me that the Deputy Inspector General of Police was not the authority empowered by the State Government in that behalf, that is, in respect of passing the suspension orders. Prima facie, therefore, it would appear that under the substantive part of the above-quoted Rule 3(1-A), the order in question had not been passed by the authorities enumerated there. The three authorities who are clothed with the powers to place a Police Officer under suspension are; (i) the appointing authority; (2) any authority to which the appointing authority is subordinate; and (3) any other authority empowered by the State Government in that behalf. The Deputy Inspector General of Police, Baroda Range, is certainly not one of the three. There is no longer any controversy before me in that regard.
6. On behalf of the respondent-State, however, the proviso appended to the substantive provision of the above-quoted Rule was vehemently pressed into service. It was alleged that by virtue of the proviso any authority lower in rank than the appointing authority could suspend the Police Officer with the only added liability to report to the appointing authority the circumstances in which the order of suspension was made and it appears that such an order could be made peremptorily because of the emergent circumstances. It was urged on behalf of the State that the Deputy Inspector General of Police, though he is an authority lower in rank than the appointing authority (Inspector General of Police in the instant case), it was within his competence to pass the order of suspension of the petitioner. According to Mr. A. 3. Patel, the learned Assistant Govt. Pleader, the only further act that was enjoined upon the Deputy Inspector General of Police was to communicate the circumstances of passing the order of suspension to the appointing authority, namely, the Inspector General of Police. The submission is not well founded. I myself had art occasion to deal with this question, which had squarely arisen before me in a similar case of suspension. In that case, a like argument was advanced On behalf of this very State and I had ruled it out. I quote below from that judgment delivered by me on 3-2-78 in the Special Civil Application No. 1189/74:
Mr. Takwani, however, urged that the proviso to the above Rule (1-A) took away the sting of the earlier provision arid so it conferred the powers to suspend on the authority lower in rank than the appointing authority. The proviso is always by way of an exception and not by way of a substantive provision, amending the main provision itself. It is, therefore, reasonable to interpret the proviso to meant that if the authority lower in rank than the appointing authority empowered by the State Government in this behalf puts a Police Officer under suspension, that authority has to forthwith report to the appointing authority the circumstances in which the order of suspension was made.
7. Mr. Patel, the learned Assistant Govt. Pleader, however, urged that to my notice provisions of Section 25(2) of the Bombay Police Act were not brought and consequently the said decision reached by me should be reconsidered by me and he also stated that it was within my powers to do so on the entire spectrum of relevant material being brought to my notice. To deal with the argument of Mr. Patel, I quote below Section 25(2) in its entirety:
25(2). The Inspector General, the Commission and the Deputy Inspector General shall have authority to punish an Inspector or any member of the subordinate ranks under Sub-section (1). A District Superintendent shall have the like authority in respect of any Police officer subordinate to him, below the grade of Inspector and may suspend an Inspector who is subordinate to him pending inquiry into, a complaint against such Inspector and until an order of the Inspector General or Deputy Inspector General can be obtained
(2) The principal of a Police Training School shall also have the like authority in respect of any member of the subordinate ranks of the Police force below the grade of Inspector undergoing training at such school or serving under him, and in respect of head constables and constables belonging to the Police Force of the District in which such school is situate or of any other district attached to such school for duty under him. He may also suspend an inspector who is undergoing training at such school or subordinate to him pending inquiry into a complaint against such inspector and until an order of the Inspector General or Deputy Inspector General can be obtained.
(bb) A Superintendent of Police appointed under Section 8A of the Police Wireless System or the Police Motor Transport System or for performing any specific duties or a Superintendent of Police appointed under Section 22A shall have the like authority in respect of any Police officer subordinate to him below the grade of inspector.
(c) The exercise of any power conferred by this sub-section shall be subject always to such rules and orders as may be made by the State Govt. in that behalf.
8. Mr. Patel very vehemently contended that under Section 25(2) the power to suspend is conferred on the District Superintendent of Police with the condition that the said suspension order would be operative till the order of suspension of the Inspector General or Deputy Inspector General could be obtained. Mr. Patel urged with appreciable vehemence that the Deputy Inspector General of Police, who is an officer superior to the District Superintendent of Police in rank should be deemed to have been specially authorised by Section 25(2). He, further urged that when the statute itself, namely, Section 25(2)(a), conferred on the District Superintendent of Police the power to suspend any police officer in the district in the emergent circumstances, anything contrary contained in above-quoted Rule 3(1-A) of the Rules in question should not be given any weight. The argument, though attractive at first blush, does not stand the close scrutiny. Clause (c) appended to Section 25(2) itself provides that the powers conferred by this Sub-section (2) of Section 25 are to be exercised subject always to such rules and orders as may be made by the State Government in that regard. The purpose behind enacting Clause (c) is self-evident. The Legislature while laying down the general policy decision was cognizant of the fact that in the sensitive sphere of Police activities, the situation may call for a different treatment and that is why Clause (c) specifically mentions that the Government may make Rules in respect of the matters of suspension contained in Sub-section (2) of Section 25 of the Bombay Police Act. As noted by me above, the Bombay Police (Punishments and Appeals) Rules, 1956 are framed by the government specifically in exercise of the powers conferred by Clause (c) of Sub-section (2) of Section 25 read with Section 5(b) of the Bombay Police Act. The conclusion, therefore, is that in the matter of suspension, the only provision that has to be looked to is the Rules and not, Sub-section (2) of Section 25 of the Act.
9. If the position being as it is found by me above, it is evident that the order of suspension passed by the Deputy Inspector General of Police in this case is to be treated as an order passed without any authority of law. In view of my above categorical finding, I allow this petition by setting aside the impugned order of suspension passed by the Deputy Inspector General of Police on 30-11-78. No other points are required to be dealt with because of this question going to the root of the matter. The petition is thus allowed. Rule is accordingly made absolute with costs. The operation and implementation of this judgment is stayed upto 18-12-1978, 5-00 P.M.