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Nand Shankar Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 151 of 1956
Judge
Reported inAIR1957Raj148
ActsConstitution of India - Article 311(1) and 311(2); Rajasthan Police Regulations, 1948 - Regulation 89
AppellantNand Shankar
RespondentState of Rajasthan and ors.
Appellant Advocate Amar Dan Barath, Adv.
Respondent Advocate Ram Avtar Gupta, Adv.
DispositionPetition dismissed
Cases ReferredHarcourt v. Fox
Excerpt:
- - the petitioner's appeal to the government also failed. 'probation' has been discussed by bar-well and kar in their book 'master and servant',volume i, and it is observed at page 65 as follows: the point is not free from difficulty but upon the whole i am satisfied that the petitioner is entitled to a second notice after summary inquiry had been made into the allegations of bribery and corruption made in the first notice......a substantive vacancy in the cadre of a department'.the discharge of such a person, during the period of probation, does not amount to 'removal' or 'dismissal' within the meaning of the civil services (classification,' control and appeal) rules. a fortiori it would follow that his suspension does not amount to reduction in rank, either to a lower post or to a lower time-scale, or to a lower stage in the same time-scale.'these observations show that the probationer as defined in r. 39 of the rules' made by the government of orissa under the government of india act, could not claim protection under article 311 of the constitution of india. the petitioner in the present case does not stand on a higher level than the probationer in the orissa case.8. we do not mean to lay down that a.....
Judgment:

Bhandari, J.

1. This is a writ petition on behalf of Nand Shankar under Article 226 of the Constitution of India forthe grant of writ of certiorari or any other writ ordirection against the State of Rajasthan, RespondentNo. 1, Inspector-General of Police, Respondent No.2 and the Deputy Inspector-General of Police, Respondent No. 3, for quashing the order of dismissalof the petitioner dated the 11th October, 1952, passed by Respondent No. 3.

2. The petitioner's case is that after he had completed his course of training at the Police Training School, Kishengarh, in the session 1950-51, he was appointed by Respondent No. 2 as a probationary Sub-Inspector in the Rajasthan Police Force, Jaipur Range, by his order No. 11-A1-3551/3897 dated the 20/21st December, 1951, with effect from the 2nd of December, 1951, and that the petitioner was confirmed as Sub-Inspector of Police by Respondent No. 2 by his order No. F/II/A-8-25-52/2910 dated the 2nd September, 1952.

The petitioner was posted at various places. Ultimately he was appointed an Officer Incharge of the Police Station, Weir, District Bharatpur in the month of June 1953, in which capacity he worked till the 20th of March, 1954. The petitioner was served with an order dated the 24th of April, 1954, by the Superintendent of Police informing him that he hadbeen put under suspension pending enquiry into his conduct.

The charge against the petitioner was that he had hushed up the enquiry relating to the murder of one Kaila Brahmin of village Pali by accepting illegal gratification, and that he had refused to register the case of murder and had committed other irregularities in the investigation of that case. The departmental enquiry against the petitioner was held by Shri Guman Singh, Superintendent of Police, Bharatpur and the Assistant Superintendent of Police, Shahpura, and on the completion of the enquiry, Respondent No. 3 served the petitioner with the notice dated the 17th of September, 1954, stating that the charges of remissness and negligence in the discharge of his duties while the petitioner was posted at Police Station, Weir, were found proved and the petitioner was required to show cause why he should not be dismissed from service.

The petitioner submitted his reply to the notice but Respondent No. 3 dismissed the petitioner from the police force by his order dated the 11th October, 1954. The petitioner went in appeal to Respondent 2, but' it was rejected. The petitioner's appeal to the Government also failed. The petitioner has challenged the order of dismissal mainly on two grounds;

Firstly, on the ground that the petitioner was appointed as Sub-Inspector of Police in the Rajas-than Police Force by Respondent No. 2 by his order dated the 20/21st December, 1951, and so his dismissal by Respondent No. 3 is in contravention of Article 311(1) of the Constitution of India as the authority dismissing him was subordinate to that by which he was appointed. .

Secondly, on the ground that the Assistant Superintendent of Police who held the departmental enquiry against the petitioner had no jurisdiction to do so as only an officer of the rank of Superintendent of Police could hold the enquiry having regard to Rule 89 (k) of the Rajasthan Police Regulation, 1948, and Notification No. C-l 8-5-52/5302-63-64 dated the 15/16th September, 1952, the said rule and the Notification having the force of law. There are some other grounds mentioned in the writ petition, but they were not argued at the bar. The arguments are confined to the two grounds referred to above. The petitioner, therefore, prayed that the order of dismissal dated the 11th October, 1954, passed by Respondent No. 3 be quashed. Notice of the writ petition was served on the respondents and Respondent No. 1 submitted the reply.

In reply to the first contention, it is urged that the petitioner was appointed by Respondent No. 2 as Sub-Inspector on probation of 18 months by order dated the 20/2lst December, 1951, Such appointment is no appointment within the meaning of law and is always subject to confirmation. After the completion of 18 months, the Deputy Inspector-General of Police confirmed him from the 1st June, 1953, as is evident from the order No. P.V.17-I952/6628 dated the 15th July, 1953. The appointing authority was not Inspector-General of Police, but the Deputy Inspector-General of Police and as he had been dismissed by the same authority, there was no contravention of Article 311(1).

3. To the second contention of the petitioner, it is urged on behalf of Respondent No. 1- that the proceedings for the departmental enquiry were drawn up by Shri Guman Singh, Superintendent of Police himself as required under R. 89 of the Rajasthan Police Regulations, 1948. The aforesaid officer handed over the copy of the charge of misconduct to the petitioner on the 2nd May, 1954, and asked him if he pleaded guilty. The petitioner pleaded not guilty and requested for enquiry. Thereafter, several prosecution witnesses were examined by him.' Later on Shri S. C. Tandon, Assistant Superintendent of Police, Jaipur, was directed to record further evidence in the case and the Deputy Inspector-General of Police, Jaipur Range, passed the order of dismissal of the petitioner, after due notice under Article 311(2) of the Constitution of India to him.

4. We may first take up the contention of the petitioner that he had been dismissed in contravention of Article 311(1) of the Constitution of India by an authority subordinate to that by which he was appointed. From the documents filed by the parties it comes out that the petitioner was appointed as Sub-Inspector on probation for 18 months with effect from, the 2nd of December, 1951, by the Inspector-General of Police, Rajasthan, vide Ex, A dated the 20/21st December, 1951. It appears that thereafter, as a result of integration, the petitioner was confirmed as Sub-Inspector on probation, vide Ex. B dated the 2nd December, 1952. The petitioner completed his period of 18 months on the 1st June, 1953, and the Deputy Inspector-General of Police, Jaipur Range, by his order dated the 15th of July, 1953, confirmed him in his substantive appointment with effect from the 1st June, 1953, vide Ex. D-5. The point at issue is, therefore, whether the petitioner should be taken to have been appointed as Sub-Inspector in the Rajasthan Police Force on the 20/21st December, 1951, by virtue of Ex. A or on the 1st June, 1953, by virtue of Ex. D-5.

5. The meaning given to the word 'probation' in Wharton's Law Lexicon, Thirteenth Edition, is 'suspension of a final appointment to an office until a person temporarily appointed (who is called a 'probationer') has by his conduct proved himself to be fit to fill it.' The above meaning makes it clear that a probationer holds only a temporary appointment till he has proved himself to be fit to fill the permanent appointment. 'Probation' has been discussed by Bar-well and Kar in their book 'Master and Servant', Volume I, and it is observed at page 65 as follows:--

''PROBATION. A term found in many contracts of service provides that for a year, or for some shorter period succeeding the date when the servant is to join for duty, he will be treated as 'on probation'.'

The learned authors then proceeded to take notice of an unreported case of Calcutta High Court in the case of Wecheler, v. Johnston & Hoffman, O. S. Suit No. 455 of 1928 (Cal) (A), mentioning that to the knowledge of the learned authors that was the only case wherein the effect of the' term 'probation' has been judicially considered. According to the learned authors, Remfry, J., in that case while considering the case of a probationer took notice of certain principles regarding goods sent 'on approval' by way of analogy. The person so making over goods is regarded as having made an irrevocable offer to sell them, and so cannot require a return of them before the time stipulated. The prospective buyer during the period named is a bailee of the goodswith an option to buy. The learned authors observed as follows in that connection:--

'Comparing the two kinds of contract, the one offering employment to a person 'on probation' and the other offering to take goods 'on approval', we see them to have in some sense certain common factors, in that the servant in the one case and the goods in the other are taken on, trial, usually for a specified time, otherwise for a reasonable time; and that if the man survives the period of trial, he passes into the permanent service of the other on an agreed salary or wage, while in the other case the property in the goods will pass to the' prospective buyer, if, by the end of the period mentioned or within a reasonable period, the latter approves them.'

In these observations the view taken is that a servant on probation is on trial during the period he is on probation and he passes into permanent service only after the lapse of the period during which he is on probation.

6. In the Rajasthan Police Regulations, 1948, it has been provided in Regulation 18 that persons who are not in police force shall remain on probation for two years after return from the police training college and during this period, they shall undergo training in the various branches mentioned therein. This period appears to have been curtailed to 18 months later on. But the period of 18 months during which the petitioner was on probation, was the period of training.

The petitioner who had been appointed as Sub-Inspector on probation, cannot, therefore, claim to be appointed on the substantive post of a Sub-Inspector. During the period he was on probation he was to prove himself worthy of being appointed on the substantive post and when he proved so, his appointment to the substantive post took place. His first appointment as probationer cannot, therefore, be treated as an appointment on substantive post of Sub-Inspector which took place later on by virtue of Ex. D'5. It may be taken that there is the continuity of service but nonetheless, the appointment of the petitioner on the substantive post of Sub-Inspector is a fresh appointment made by the Deputy Inspector-General of Police in the same sense in which, for example an Assistant Secretary in the Secretariat is appointed as a Deputy Secretary on promotion.

We are, therefore, of opinion that the petitioner was appointed as Sub-Inspector on the substantive post by the Deputy Inspector-General of Police and he has been dismissed by an authority not subordinate to him. His dismissal order cannot be challenged on the ground that it contravenes Article 311(1) of the Constitution of India. We may take notice of some authorities which though not directly applicable to the point under consideration, throw some light on it.

7. In the case of Dandapani Gouda v. State of Orissa, AIR 1953 Orissa 329 (B), it was observed as follows:--

'It has also to be remembered that the petitioner is only a probationer, 'Probationer' has been defined in R, 39 of the Rules made by the Governor of Orissa under Section 241, Government of India Act, as a

'government servant employed on probation in or against a substantive vacancy in the cadre of a department'.

The discharge of such a person, during the period of probation, does not amount to 'removal' or 'dismissal' within the meaning of the Civil Services (Classification,' Control and Appeal) Rules. A fortiori it would follow that his suspension does not amount to reduction in rank, either to a lower post or to a lower time-scale, or to a lower stage in the same time-scale.'

These observations show that the probationer as defined in R. 39 of the Rules' made by the Government of Orissa under the Government of India Act, could not claim protection under Article 311 of the Constitution of India. The petitioner in the present case does not stand on a higher level than the probationer in the Orissa case.

8. We do not mean to lay down that a probationer cannot be granted certain rights and privileges under appropriate rules. In Gopi Kishore Prasad v. State of Bihar, (S) AIR 1955 Pat 372 (C), a probationer was held to be entitled to the protection granted to him under Article 311(2). The following observations may be quoted:--

'The next question presented for determination is whether the petitioner should have been given a second notice under Article 311(2) of the Constitution before the final order of discharge was passed against him. . It was argued on behalf of the petitioner that even though the amended R. 55 contemplated only a summary inquiry in the case of a probationer officer, the provision of Article 311(2) of the Constitution required that a second notice should be given before the final order of discharge was made.

It was, however, pointed out on behalf of the respondents that a probationer was always liable to be discharged in case his conduct was not satisfactory and there was no necessity of giving a second notice as contemplated by Article 311(2) of the Constitution. The point is not free from difficulty but upon the whole I am satisfied that the petitioner is entitled to a second notice after summary inquiry had been made into the allegations of bribery and corruption made in the first notice.'

The Nagpur High Court in the case of Tribhuwannath Pandey v. Government of the Union of India, AIR 1953 Nag 138 (D), has also taken the same view. The point under consideration in these cases was different from that before us. The point before us relates to the applicability of Article 311(1). It involves the determination of the question as to which is the appointing authority of the petitioner on the substantive post of a Sub-Inspector. For reasons al-ready mentioned, we are of opinion that his confirmation in the substantive post of Sub-Inspector is a fresh appointment to which he was appointed by Respondent No. 3.

9. We may now pass on to the second contention raised on behalf of the petitioner. The petitioner has relied on Regulation 89 (k) of the Rajasthan Police Regulations which runs as follows:--

'Proceedings against Inspectors and in cases of serious misconduct against officers of and below the rank of Sub-Inspector shall be drawn up by the Superintendent of Police himself. In other cases proceedings may be drawn up and evidence recorded by an officer not below the rank of Inspector (excluding Armed Inspectors) who will after, completion of the proceedings, submit the record to the Superintendent of Police for perusal and final orders.'

It is urged that the petitioner was charged of serious misconduct and therefore, the whole of the departmental enquiry against him should have been conducted by the Superintendent of Police and inasmuch as part of the evidence was recorded by the Assistant Superintendent of Police who also drew up a fresh charge, the departmental proceedings have not been conducted in conformity with Regulation 89 (f). From the documents on record it is apparent that the Superintendent of Police, Shri Guman Singh drew up the proceedings against the petitioner.

It was he who drew up a document which he styled as summary of misconduct of the petitioner and other police officials, Ex. D-9. In that document all the facts on which the dismissal of the petitioner is based, are given. It was he who questioned the petitioner with regard to the charge contained in Ex. D-9 and elicited the reply o the petitioner that he wanted an enquiry to be held and that he had committed no misconduct as contained in Ex. D-9.

Thus it is clear that the Superintendent of Police, Shri Guman Singh, had himself drawn up the preliminary proceedings. It also appears that he had recorded some evidence but thereafter, rest of it was recorded by the Assistant Superintendent of Police, Shri Tandon who drew up a fresh charge-sheet, which runs on the same lines as the charge-sheet drawn up by the Superintendent. The objection taken by the petitioner is that the Assistant Superintendent of Police should not have recorded the evidence.

In our opinion, under Regulation 89, the drawing up of proceeding is to be distinguished from the recording of the evidence. Under Regulation 89 (b) a definite charge is to be framed and the person who is charged is to be given a copy of the charge and thereafter, an oral enquiry is to be held as provided in R. 89 (c) which runs as follows:--

'An oral enquiry shall be held if the person charged so wants or if the authority who has drawn up the proceeding so 'directs. At that enquiry oral evidence shall be heard in respect of such of the allegations as are not admitted and the person charged shall be allowed to cross-examine witnesses immediately after the examination in chief and to have such defence witnesses called as he may require, provided that the enquiring officer may, for sufficient reasons to be recorded in writing, refuse to call any such witnesses.'

This phraseology shows that the oral enquiry is to take place after the proceedings have been drawn up. Regulation 89 (k) only requires that the proceedings should be drawn up by the Superintendent of Police himself, it does not require that the evidence should also be recorded by him. In the case of persons other than those referred to in the opening sentence of Reg. 89 (k), the words used are 'proceedings may be drawn up and evidence recorded'.

This shows that a distinction is maintained between the drawing up of proceedings and the recording of evidence. The framers of the Regulations did not consider that 'drawing up of proceedings' included the 'recording of the evidence', otherwise the use of the words 'and evidence recorded' would have been superfluous. The sound principle of the construction ol a Statute is to give effect to every word used in it. The following observationsfrom. Craies on Statute Law, Fifth Edition, page 99. may be quoted:--

''To reject words as insensible', said Erle, C. J., in R. v. St. John, Westgate, Burial Board, (1862) 2 B & S 703, 706 (E), 'is the ultima ratio when an absurdity would follow from giving effect to the words of an enactment as they stand'. In R. v. Barchet, (1688) I Show 108 (F), it was said to be a known rule of interpretation of Statutes, that such a sense to be made upon the whole as that no clause, sentence or word shall prove superfluous, void, or insignificant, if by any other construction, they may all be made useful and pertinent. And in Harcourt v. Fox, (1693) 1 Show 506, 532 (G), Lord Holt said: 'I think we should be very bold men, when we are entrusted with the interpretation of Acts of Parliament, to reject any words that are sensible in an Act'.'

We are, therefore, of opinion that there was no infringement of Regulation 89 (k). The second contention of the petitioner is therefore, rejected.

10. The petition has, got no force and is dismissed with costs.


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