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P. Amalanathan Vs. the Superintendent of Police - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtChennai High Court
Decided On
Reported in(1966)2MLJ496
AppellantP. Amalanathan
RespondentThe Superintendent of Police
Cases ReferredRajagopal v. Superintendent of Police
Excerpt:
- - 4. the amendment as well as the order of the superintendent of police were challenged on several grounds......of police, salem in d.o. no. 1731 of 1964, dated 23rd september, 1964.2. the petitioner joined the police service of the madras state in 1941 as sub-inspector of police. while he was serving in the salem district, he was placed under suspension on 27th october, 1952, pending enquiry into certain charges against him. the enquiry into the charges began on 19th december, 1952, and ended on 7th january, 1953. the petitioner was dismissed from service by an order dated 4th december, 1953, to take effect retrospectively from the date of suspension, 27th october, 1952.3. the petitioner filed writ petition no. 1516 of 1956 in this court for quashing the order of dismissal passed against him. this court by an order dated 11th november, 195.8, issued the writ prayed for and quashed the order of.....
Judgment:
ORDER

P.S. Kailasam, J.

1. This petition is filed for the issue of a writ of certiorari for quashing the order of the Superintendent of Police, Salem in D.O. No. 1731 of 1964, dated 23rd September, 1964.

2. The petitioner joined the Police Service of the Madras State in 1941 as Sub-Inspector of Police. While he was serving in the Salem District, he was placed under suspension on 27th October, 1952, pending enquiry into certain charges against him. The enquiry into the charges began on 19th December, 1952, and ended on 7th January, 1953. The petitioner was dismissed from service by an order dated 4th December, 1953, to take effect retrospectively from the date of suspension, 27th October, 1952.

3. The petitioner filed Writ Petition No. 1516 of 1956 in this Court for quashing the order of dismissal passed against him. This Court by an order dated 11th November, 195.8, issued the writ prayed for and quashed the order of dismissal. The State of Madras preferred Writ Appeal No. 78 of 1959 against the judgment in Writ Petition No. 1516 of 1956. The appeal was decided by a Full Bench of this Court on 30th April, 1964. The Full Bench dismissed the Writ Appeal holding that the rules of natural justice were violated. On 26th September, 1963, the State Government passed G.O. Ms. No. 3075 dated 26th September, 1963, amending the Madras Police Subordinate Services Discipline and Appeal Rules, 1955. According to the rule, when a penalty of dismissal imposed upon a member of a service is set aside by a decision of the Court and the disciplinary authority decides to hold a further enquiry against him, the member of the service shall be deemed to have been placed under suspension by the appointing authority from the date of the original order of dismissal and shall continue to remain under suspension until further orders. In pursuance of this amendment the Superintendent of Police, Salem, by his order dated 23rd September, 1964, reinstated the petitioner in service and placed him under suspension pending disposal of the charges against him. The order also stated that the petitioner would be deemed to have been under suspension with effect from 27th October, 1952, the date on which he was originally kept under suspension. As a result of the amendment and the order passed on the petitioner, though the petitioner was dismissed on 4th December, 1953, with effect from the date of suspension 27th October, 1952, the order of suspension was deemed to take effect from 27th October, 1952, and continue until further orders, The effect of this order is that, though the order of dismissal dated 4th December. 1953, passed with retrospective effect from 27th October, 1952, was set aside in Writ Petition No. 1516 of 1956 on 11th November, 1958, and in Writ Appeal No. 78 of 1959, the petitioner is deemed to be under suspension from 27th October, 1952. The petitioner, who would have been entitled to his pay from the date of dismissal on 4th December, 1953, up-to-date has been deprived by the amendment to the rules and the order of the Superintendent of Police.

4. The amendment as well as the order of the Superintendent of Police were challenged on several grounds. It was submitted that the rule, which was promulgated on 26th September, 1963, cannot have any retrospective effect so as to apply to the judgment of the High Court quashing the order of dismissal of the petitioner. It was further contended that the rule-making authority cannot make any rule giving retrospective effect. It was submitted that the rule, which is purported to have been made under Section 10 of the Madras District Police Act and Section 11 of the Madras City Police Act read with proviso to Article 309 of the Constitution of India, is not within the competency of the rule-making powers of the Governor. The rule was also challenged on the ground that it is penal in its nature in that it deprived the emoluments to which the petitioner was entitled and was made without notice to the petitioner. Finally, it was contended that, though the amended rule provided that the member of the service shall be deemed to have been placed under suspension from the date of the original order of dismissal, according to the order of the District Superintendent of Police, the petitioner is placed under suspension from 27th October, 1952, which is beyond the scope of the amended rule.

5. The notification amending the Madras Police Subordinate Service Discipline and Appeal Rules, 1955 and the relevant rule may be extracted:

In exercise of the powers conferred by section to of the Madras District Police Act, 1859 (Central Act-XXIV of 1859), and Section 11 of the Madras City Police Act, 1888 (Madras Act III of 1888 read with the proviso to Article 309 of the Constitution of India, the Governor of Madras hereby make the following amendment to the Madras Police Subordinate Services Discipline and Appeal Rules 1955(in Volume IV of the Madras Services Manual, 1954):

AMENDMENT.

In Rule 3 of the said rules, for Clause (c), the following clause shall be substituted, namely:

(c)....

(i)....

(ii)....

(2) ....

(3)....

(4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a member of the service is set aside or declared or rendered void in consequence of or by a decision of a Court of law and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the member of the service shall be deemed to have been placed under suspension by the appointing authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders.

(5)....

The submission was that the impugned rule is penal in nature and is not provided in either the District Police Act or the City Police Act and is contrary to the provisions of these Acts, and, therefore, not within the competence of the rule-making powers of the Governor. It was pleaded that the power of the Governor to make rules is in the nature of a subordinate legislation and he cannot make any provision giving retrospective effect. Before considering this question it will be useful to refer to the decision of the Supreme Court in Khem Chand v. Union of India : (1963)ILLJ665SC . The validity of Rule 12(4) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 was challenged before the Supreme Court. The wording of Rule 12(4) is the same as in the impugned rule. The officer concerned was a Sub-Inspector of Co-operative Societies, Delhi. He was suspended on 1st July; 1949, and after enquiry was dismissed on 17th December, 1951. The officer filed a suit on 20th May, 1953, praying for a declaration that the order of dismissal made against him was invalid in law and that he still continued to be in service of the Government. The trial Court decreed the suit on 31st May, 1954, declaring that the officer's dismissal was void and inoperative and that he continued to be in service of the State of Delhi at the date of the institution of the suit. The, Government of India preferred an appeal and the Subordinate Judge, Delhi, dismissed the appeal on 31st December, 1954. The Second Appeal preferred by the State was allowed by the Punjab High Court on 1st November, 1955, and the decree was set aside. The officer preferred an appeal to the Supreme Court, and the Supreme Court by its judgment dated 13th December, 1957, held that the provisions of Article 311(2) had not been fully complied with and declared that the order of dismissal passed by the Deputy Commissioner on 17th December, 1951, was inoperative and that the appellant was a member of the service at the date of the institution of the suit. The Supreme Court also directed that the officer be paid his costs throughout. After the decree of the trial Court was confirmed by the Sub-Court on 31st December, 1954, the officer filed another suit on 20th April, 1955, claiming arrears of salary and allowances. The hearing of that suit was stayed on 26th December, 1955, as the appeal preferred by the officer was pending in the Supreme Court. After the judgment of the Supreme Court was delivered on 13th December, 1957, the officer made an application to the trial Court on 26th December, 1957, praying that the hearing of the suit be taken up. But the State made an application to the Subordinate Judge on 7th August, 1958, stating that the disciplinary authority had on a consideration of the circumstances of the case decided to hold a further enquiry against the officer and notified that the officer should be deemed to have been placed under suspension by the appointing authority from 17th December, 1951. The trial Court directed stay of the trial of the suit Until the order of suspension was revoked. Against this order the officer filed a revision petition to the High Court challenging the validity of Rule 12(4) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957. The High Court dismissed the revision petition and against that order an appeal to the Supreme Court was preferred.

6. In the Supreme Court the validity of Rule 12(4) was challenged on the ground that it contravened the provisions of Articles 142, 144, 19(1)(f), 31 and 14 of the Constitution. It may be noted that as in the present case the impugned rule came into force before the Court finally held that the order of dismissal could not be sustained. In the case before the Supreme Court the rule came into force on 28th February, 1957, while the judgment of the Supreme Court was on 13th December, 1957, whereas in the present case the rule came into force on 26th September, 1963, while the decision of the Full Bench of the High Court was rendered on 30th April, 1964. The plea of the learned Counsel for the petitioner that the writ petition was disposed of on 11th November, 1958, and as the rule took effect only on 26th September, 1963, the decision of the Supreme Court is not applicable has to be rejected, as the order in Writ Appeal was made only on 30th April, 1964, after the rule came into force. Therefore the facts in this case are similar and the decision of the Supreme Court is applicable to this case. The Supreme Court negatived all the contentions raised by the learned Counsel for the officer. It held that Article 19(1)(f) of the Constitution was not contravened. Though the officer had a right for arrears of pay and allowances, which constituted property, the Supreme Court held that the rule is a reasonable restriction of his right in respect of the property as it is in the interests of the general public.

7. Mr. Venugopal, learned Counsel for the petitioner, contended that the questions raised by him in this Writ Petition were not raised before the Supreme Court, and submitted that they may be decided. The scope of the rule making powers of the Governor under Article 309 of the Constitution may now be considered. Article 309 is as follows:

Subject to. the provisions of this Constitution, Acts of the appropriate legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State of such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this Article, and any rules so made shall have effect subject to the provisions of any such Act.

8. This Article confers certain powers upon the Legislature to legislate regulating the recruitment and conditions of service of persons appointed to public services. So long as the appropriate Legislature does not legislate on the matter, the President or the Governor or such person as they may direct may make rules regulating the recruitment and the conditions of service of persons appointed to such services. Rules made by the President or the Governor pending legislation or the Acts made by the Legislature would be subject to the provisions of the Constitution. The Legislature has not passed any enactment and it is admitted that the President and the Governor are competent to make rules regulating the recruitment and the conditions of service of persons appointed to such services. The rule-making power, though subject to the provisions of the Constitution, is conferred by the Constitution. There is no restriction on the legislative power of the President or the Governor to bar making rules giving retrospective effect. A member of the Public Service holds office during the pleasure of the President or the Governor subject to the provisions of Article 311 of the Constitution. The Legislature, the President or the Governor may make a law regulating the conditions of service including proceedings by way of disciplinary action. The law thus made may regulate the scope and content of the doctrine of reasonable opportunity embodied in Article 311 of the Constitution. It has also been held that the rules made under Article 309 or continued under Article 313 in relation to the conditions of service are enforceable by' Court of law if they are mandatory in their nature. Mr. Venugopal', learned Counsel for the petitioner, contended that the very fact that the President and the Governor are empowered only to make rules, it would mean that the rules made by them are in the nature of subordinate legislation and can only have the effect of rules framed under legislative enactments. It was further submitted that the power to make rules can only be exercised prospectively, unless the Legislature specifically empowered the rule-making authority to make rules with retrospective effect. He relied on a decision of this Court in Writ Petition No. 823 of 1963, etc. The contention of the learned Counsel will be right, if the rule making power of the President or the Governor is analogous to the powers of the rule-making authority under a legislative enactment. This plea cannot be accepted, as the rule-making power of the President and the Governor under Article 309 is conferred by the Constitution, and subject to the other provisions, of the Constitution the rule-making power is supreme and not restricted. Therefore, the contention of the learned Counsel that the rule-making power is in the nature of a subordinate legislation or that it cannot pass any retrospective legislation cannot be accepted.

9. It was next contended that the rule-making power is confined only to regulating the recruitment and the conditions of service of persons appointed after the rule took effect. Reliance was placed on the words ' persons appointed ' in Article 309, There is no justification for restricting the words 'persons appointed' to persons already appointed before the rule comes into force. Under Article 309, the power is conferred to make rules regulating the recruitment and conditions of service of persons appointed to such services and posts. The restriction of the rule-making power to persons already appointed is not discernible in this rule. The Governor and the Legislature are empowered to make rules to regulate the conditions of service with retrospective effect. Before the matter was taken up to the Supreme Court in Khemchand v. Union of India : (1963)ILLJ665SC , the Punjab High Court considered the validity of Rule 12(4) of the Central Civil Service (Classification, Control and Appeal) Rules, 1957 in Khemchand v. Union of India I.L.R. (1961) P.&H.; 62. The Punjab High Court held that nothing prevented the Government from making rules under Article 309 with retrospective effect affecting the Government servants prejudicially by rules which did not exist at the time of employment. The same view was taken by the Calcutta High Court in Anil Nath v. Collector of Excise : AIR1958Cal407 , and by the Allahabad High Court in Pirthinath v. State of UP : AIR1959All169 .

10. So far as the public servant in concerned, Article 310 provides that except as expressly provided by this Constitution every person holding a civil post in the Union holds office during the pleasure of the President and every person holding a civil post in the State holds office during the pleasure of the Governor of the State. But a member of the public service is constitutionally protected, in that he cannot be dismissed by an authority subordinate to that by which he was appointed and that he cannot be dismissed, removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. Apart from the constitutional guarantees the public servant in also entitled to the enforcement of the rules that may be made under Article 309 or continued under Article 313. The provisions of law regulating the recruitment and the conditions of service are subject to the provisions of the Constitution and can be attacked on the ground that they are contrary to any of the provisions of the Constitution.

11. It was next contended that the rule-making power is exercisable only under Section 10 of the District Police Act and Section 11 of the City Police Act, and the Governor is not competent to make rules under Article 309 affecting the police service. The submission was that Section 243 of the Government of India Act, 1935 provided that the conditions of service of the subordinate ranks of various police forces shall be such as may be determined by or under the Acts relating to those forces respectively. Section 243 of the Government of India Act is not incorporated in the Constitution and it was sought to be argued that the laws continued under Article 313 of the Constitution cannot be altered or amended under the rulemaking powers conferred under Article 309 of the Constitution of India. Wherever the rules made under Article 309 are not in conformity with the rules continued under Article 313, it was submitted that the rules made under Article 309 should give way. This submission cannot be accepted, as the Constitution has empowered under Article 309, the Legislature and the President and the Governor to make laws for regulating the recruitment and the conditions of service of persons appointed to public services including police service. The power conferred under Article 309 of the Constitution includes the power to make rules and obviously to amend the rules relating to the police service also. Further, there is no substance in the plea that the impugned rule is contrary to any of the provisions of the Madras District Police Act or the Madras City Police Act, It has been held by. a Bench of 1 his Court in Rajagopal v. Superintendent of Police : AIR1965Mad103 , that the Madras Police Subordinate Services Discipline and Appeal Rules, 1955 made in exercise of the rowers conferred Under Section 10 of the Madras District Police Act, 1859, and Section 11 of the Madras City Police Act, 1888 read with the proviso to Article 309 of the Constitution of India are valid. Though the rules were expressed to have been framed under Section 10 of the Madras District Police Act and Section 11 of the Madras City Police Act read with the proviso to Article 309 of the Constitution of India, the rules were in fact framed Under the powers conferred on the Governor under the proviso to Article 309 of the Constitution of India, and the exercise of power would be referable to a jurisdiction which conferred validity upon it. This contention also fails.

12. It was finally contended that, even if the amended rule. is held to be valid, a member of the service can only be deemed to have been placed under suspension from the date of the original order of dismissal and not from the date of the order of suspension. It was contended by the Additional Government Pleader that the words 'the date of the original order of dismissal' in the rule should be construed as the date from which the order of dismissal took effect. I am unable to construe the order in the manner suggested by the learned Government Pleader, for the words are explicit that the member shall be deemed to have been placed under suspension from the date of the original order of dismissal and not from the date of the order of suspension. The order of the Superintendent of Police that the officer shall be deemed to be under suspension from 27th October, 1952, is not in conformity with Rule 3(c)(4) but according to the rule the petitioner will be deemed to be under suspension from 4th December, 1953. But it is unnecessary to pursue the matter as the petitioner was in suspension from 27th October, 1952 to 4th December; 1953. With these observations the Writ Petition is dismissed. No order as to costs.


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