P. Chakravartti, C. J.
1. I cannot say that this case was very satisfactorily handled in the Court below or that the materials which wore really conclusive of the single point urged before the learned Judge were placed before him. But the decision arrived at seems, nevertheless, to be correct.
2. The appellant was a Poliee Constable attached to the Rajpur Outpost within the Police Station, Sonarpur, District 24 Parganas. It appears that the higher authorities had some information that constables on traffic duty were realising illegal gratification for allowing lorries which were dangerously loaded to pass unchallenged. A plan was then devised for detecting delinquent constables in the actual commission of the offence. On a particular day two high-ranking Police Officers, one of them the Deputy Superintendent himself, got into a lorry, loaded heavily with straw, and concealed themselves in the middle of the vehicle. When the lorry was nearing the Rajpur market, the appellant is said to have flashed a torchlight at the driver at which the latter stopped the vehicle and went down to meet the appellant. He had previously been provided with some coins painted with green dye. He paid the appellant a sum of Rs. 1-8-0 in such painted coins and it is said that the dye was transferred to the appellant's palm when he unsuspectingly received the coins. The means of detection having thus been completed, the two Police Officers got clown from the lorry and disclosed themselves. They caught hold of the appellant and took him to the nearest police outpost Thereafter, proceedings were commenced against the appellant on a charge of gross misconduct, the misconduct being that, on the date in question, he had demanded and received illegal gratification from the driver of the lorry in which the Police Officers had been travelling.
3. The appellant's defence was the usual one of planting. He submitted that he had not flashed any torch-light at all, nor made any other signs to indicate that he wished to be bribed. He was only proceeding to the outpost for reporting himself for the night duty and had stopped at a betel shop on the way, when a coolie of the lorry came up to him and tried to force something into his hands. The coolie, it was said, was quickly followed by two Officers who placed him under arrest and took him to the police station.
4. This explanation found no favour at the Departmental enquiry. The appellant was found guilty of the offence charged against him and ultimately he was dismissed by an order passed by the Additional Superintendent of Poliee on 10-5-1954.
5. The appellant appealed to the Deputy Inspector-General of Police against the order without any success and subsequently made an application to the Inspector-General which also met with no better fate; He then moved this Court under Article 226 of the Constitution and obtained a Rule.
6. No point was raised in the present proceedings as to any procedural defect in the enquiry. The only contention urged against the validity of the order of dismissal was that contrary to the provisions of Article 311(1) of the Constitution, the appellant had been dismissed by an authority subordinate to that by which he had been appointed. The appellant, it was said, had been appointed by the Superintendent of Police, but he had been dismissed by the Additional Superintendent who, it was said, was an Officer of an inferior rank.
7. Sinha, J., repelled the contention. There wast no clear statement by the appellant in his petition that he had been appointed by the Superintendent of Police. He only stated that be had been recruited as a constable by the Superintendent of Police, 24-Par-ganas. The learned Judge, however, does not appear to have treated this question as a question of fact and does not seem to have made any enquiry as to who had actually made the appointment, but he proceeded on the basis that, under the relevant Rules, the appointing authority in the case of constables was the Superintendent of Police. I need hardly point out that although under the relevant Rules, a particular authority may be the appointing authority with respect to employees of a certain grade, it is always a question of fact as to whether it was that authority who had actually made the appointment in a given case. The appellant could obtain relief only if he could show that he had been dismissed by an authority, subordinate to that by which he had been appointed, but not if he merely showed that he had been dismissed by an authority subordinate to that by which he ought to have been appointed. The best way of proving by whom the appointment had been made would be to produce the letter of appointment. We were informed that the letter of appointment was not in the possession of the appellant, because after his dismissal it had been taken away from him as required by the Police Regulations. Even so, however, the appellant might and ought to have called upon the respondents to produce the letter of appointment or his Service Book, either of which would show by whom he had been appointed in fact.
8. The respondents sought to meet the appellant's contention not by establishing that an Additional Superintendent of Police was of the same rank as the Superintendent, but by trying to show that it was the Additional Superintendent of Police who had actually appointed the appellant and not the Superintendent, as alleged by him. tn support of that contention, they produced before the learned Judge a book, called Enlistment Book, and drew attention to the entries relating to the appellant. The learned Judge appears to have paid some attention to this Register, but I cannot but consider it as unfortunate that he should have been asked to rely on it. The Register purports to have been kept in P.R.B. Form No. 124 prescribed under R. 843, but that Rule does not seem to be the corresponding Rule of the Bengal Police Rega-lations. The form, however, corresponds to Bengal Form No. 5320 as stated in the form itself, and that form is prescribed by Regulation No. 752. The contents of Bengal Form No. 5320, which is set out at page 419 of the Second Volume of the Bengal Police Regulations, are precisely the same as those of the form exhibited in the present case and the headings of the columns are worded in the same language. It would appear from Regulation No. 752 that the register kept in Form No. 5320 is not at all a register of persons appointed as constables, but it is only a Register of Candidates for appointment. Indeed, the marginal note in Regulation 752 is 'Register of Candidates' and the same is the heading of the form itself. It would thus appear that this Register would not show by whom a person whose name appears in it was appointed a constable. Even assuming, however, that the Register may be taken as an Appointment Register, I cannot see that it shows that the appellant was appointed by the Additional Superintendent of Police. The 12th column on which reliance is placed appears under the following heading : 'S.P.'s order, number and date of District order and initial of the Reserve Officer.' Below the entries in that column appears the signature of an Additional Superintendent of Police, but it seems to be perfectly clear that that signature does not appear as the signature of the appointing authority, but only as a signature of the Reserve Officer referred to in the heading. Indeed, the heading speaks of the 'S.P.'s order' and the number of an order is in fact given in the body of the column. It will thus appear that whatever order may have been referred to in the Register produced before the learned Judge, it was an order made by the Superintendent of Police of which the number and the date are given and that the signature of the Additional Superintendent of Police at the bottom of the entries by no means shows that it was he who had made any order. Indeed, there is another column, namely, column 8, where the initials of the Superintendent of Police and the date of such initials are intended to be entered. In my view, no assistance whatsoever could be derived from the Enlistment Register which was relied on by the respondents for showing that the appellant had in fact been appointed by the Additional Superintendent of Police.
9. To go back to the question in issue, Sinha J., has found an answer to it in the definition of 'Superintendent', as given in Regulation I (i) of the Police Regulations. It is there stated that
'Superintendent' means 'Superintendent of Police and includes an Additional Superintendent and any officer, not below the rank of Inspector, temporarily discharging the duties of the Superintendent of Police when the latter is incapacitated or absent from head-quarters.'
The learned Judge has also referred to Regulation 746 which deals with the appointment and discharge of constables and which provides by Clause (a) that in the case of constables, the appointing authority is the Superintendent of Police. The learned Judge has observed that if the expression 'Superintendent of Police', as occurring in Regulation 746 (a), is read in the light of the definition contained in Regulation 1 (i). it will be found that the appointing authority in the case of constables is the Superintendent of Police or the Additional Superintendent. If then an Additional Superintendent is also a proper appointing authority in the case of constables, the appellant, the learned Judge concluded, had not been dismissed by an authority subordinate to that by which he had been appointed. Theoretically, it is possible that Officers of two different ranks, one higher and one lower, may both be the appointing authority in the case of officers of a still lower class. But in the present case since the definition of 'Superintendent' includes an Additional Superintendent, the learned Judge thought that, by the definition itself, they had been shown to be of equal rank.
10. It was contended before us that the definition had not been properly read and that what the definition really meant was that an Additional Superintendent of Police was to be treated as the Superintendent only during the time when he might temporarily discharge the duties of the Superintendent, because the latter was incapacitated or absent from head-quarters. The last words of the definition, it was said, should be read as qualifying not merely the words 'any officer, not below the rank of Inspector,' but also the words 'an Additional Superintendent.' I may say at once that this construction appears to me to be plainly untenable and not at all warranted by either the sequence of the words of the definition or its grammar. In my view, the definition includes Additional Superintendent in the term 'Superintendent' for all purposes and for all time, but includes an officer not below the rank of Inspector only when such officer may be discharging the duties of a Superintendent temporarily. This latter qualification does not, to my mind, attach to the Additional Superintendent as referred to in the definition.
11. It was then contended that we ought not to find equality of rank between the Superintendent of Police and the Additional Superintendent inferen-tially from the definition, because there were clear and direct provisions in the Regulations themselves which showed that the Additional Superintendent was subordinate to the Superintendent. Reference was made to Regulations 39 and 40. Regulation 39 (a) says that the Additional Superintendent is 'in subordinate alliance with the Superintendent and holds a position similar to that of a second in command of a regiment.' Regulation 40 provides that the Superintendent may delegate some of his functions to the Additional Superintendent, but not some others. It was contended that unless the Additional Superintendent was subordinate to the Superintendent, there could be no question of his being the second in command, nor any question of the Superintendent delegating some of his powers to him. In my view, the effect of Regulations 39 and 40 is not what was contended for on behalf of the appellant. What those Regulations contemplate and provide is that for the particular station where he is the Superintendent, the Superintendent of Police is in over-all charge of all the matters with which the Police are concerned and as regards the performance of the various duties, the Additional Superintendent should take his directions from him. That only means that for the purpose of the discharge of the functions of a particular station, the Superintendent is made the supreme head and that he is given the power to deploy the other officers of the station in such manner as he may deem fit, but from it, it does not follow that an officer to whom he is thus given the power to give directions cannot be an officer equal to him in rank. The provisions of Regulations 39 and 40 are only addressed to prescribing the scheme for the performance of the police duties of a particular station and are limited to the practical performance of those duties. They, to my mind, have no bearing on the question of rank as between the Superintendent of Police and the Additional Superintendent. If I may take an analogy from a sphere with which we are more familiar, an Additional District Judge takes his administrative directions from the District Judge, but both are members of the higher Judicial Service and they are of the same rank.
12. It is really not necessary to argue out the equality of rank as between the Superintendent of Police and the Additional Superintendent, because there is a clear provision contained in Regulation 8 and Appendix I of the Police Regulations which, to my mind, is decisive. It is unfortunate that the attention of the learned Judge should not have been drawn to these two provisions. Regulation 8 states that a table showing all ranks of police officers in order of precedence is given in Appendix I. Appendix I is headed : 'Table showing all ranks of police officers in order of precedence.' Below the heading there are two columns, in one of which the serial number is given and in the other the rank. To quote only the material part of the Appendix, the hierarchy of the officers from the top downwards is given as follows :
(ii) Deputy Inspector-General,
(iv) Officiating Superintendent.
(v) Assistant Superintendent.'
I need not quote the Appendix further. It will be noticed that the Appendix does not mention an Additional Superintendent at all. The obvious reason is that by the definition contained in Regulation 1 (i), the term 'Superintendent' includes an Additional Superintendent and if the word 'Superintendent', as occurring in the Appendix, is read in the light of that definition, it will be found that the rank given to an Additional Superintendent in the order of precedence is identical with that given to the Superintendent and, indeed, is one and the same rank. The Additional Superintendent is not mentioned separately, because he is included and merged in the Superintendent. There can be no possible answer to this implication of the Appendix and indeed the learned Advocate for the appellant very frankly conceded that in the face of Appendix I, it was difficult to maintain that an Additional Superintendent of Police was subordinate in rank to that of the Superintendent.
13. The above was the only point urgent before the learned trial Judge. Before us an attempt was made to argue that although the Additional Superintendent of Police might be an officer of the same rank as the Superintendent, yet he had no dismissing power. This point was never raised before the learned trial Judge and it was never contended that even if the appointing authority and the dismissing authority in the present case were of the same rank, the appellant had yet not been properly and legally dismissed, because the officer who had actually passed the order of dismissal had no power to dismiss any one at all. I do not, therefore, think that we can admit this contention advanced for the first time in the present appeal. The only question urged before the learned trial Judge is the Constitutional question as to whether the appellant's dismissal was bad as having been ordered by an authority subordinate to the appointing authority. On that point the appellant has failed and, in my view, by that failure he must abide.
14. For the reasons given above, this appeal fails and it is dismissed, but there will be no order for costs.
S.C. Lahiri, J.
15. I agree.