Full Judgment Text
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PETITIONER:
MOHAMMAD ABDUL SALAM KHAN
Vs.
RESPONDENT:
SARFARAZ AHMAD KHAN & OTHERS
DATE OF JUDGMENT05/03/1975
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
RAY, A.N. (CJ)
MATHEW, KUTTYIL KURIEN
GUPTA, A.C.
CITATION:
1975 AIR 1064 1975 SCR (3) 860
1975 SCC (1) 669
ACT:
U.P. Town Areas Act, (II of 1914) s. 6K--Scope of--Dismissed
Government servant--If could be elected as Chairman of Town
Area Committee--Dismissal--Meaning of.
Punjab Police Rules--Rule 16(2)(iii)--Scope of--Publication
of dismissal in Police Gazette--Effect of.
HEADNOTE:
Section 6-K of the U.P. Town Areas Act provides that a
person I notwithstanding that he is otherwise qualified,
shall be disqualified for being chosen as, and for being a
member or Chairman of a Committee if he is a dismissed
servant of a local authority, the State or Central
Government and is debarred from re-employment therein. Rule
16(2) (iii) of the Punjab Police Rules, which apply to
respondent No. 1 at the relevant time, states that when a
police ,officer is convicted judicially and dismissed. or
dismissed as a result of a departmental enquiry, the
conviction and dismissal and its cause shall be published in
the Police Gazette. In other cases of dismissal when it is
desired to ensure that the officer dismissed shall not be
re-employed elsewhere, a full descriptive roll. with
particulars of the punishments. shall be sent for
publication in the Police Gazette
The first respondent, a dismissed police constable. was
elected as Chairman ,of the Town Area Committee. The
appellant. who was the defeated candidate, assailed the
election of the respondent. The Election Tribunal
constituted under the U.P. Town Areas Act set aside the
election and declared the appellant as the Chairman. In a
writ petition under Art. 226, a single Judge of the High
Court affirmed the order of the Tribunal as regards the
election of the respondent No. 1 but in relation to the
relief directed against the declaration of the appellant as
Chairman.
A Division Bench of the High Court allowed the appeal of
respondent No. 1 holding that s. 6-K spoke of two
components, namely, (a) dismissal and (b) being debarred
from re-employment and since the second ingredient was not
present in the order of termination against the constable,
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the formula for disQualification was not fulfilled.
Allowing the appeal,
HELD : (1) There is no escape from the conclusion that the
first respondent was punished under the former part of r.
16(2) (iii) and incurred the extreme wrath of the law
including disbarment from re-employment. Logically. there-
fore. he suffered disqualification under s. 6-K of the Act
and the Tribunal. in removing him from Chairmanship, acted
legally. [866 F]
Section 7 of the Police Act speaks of dismissal as ’a single
category of punishment, not as two twigs from the same
branch, that is, dismissal without and with embargo on re-
entry into State service. When s. 7 uses the expression
’dismissal’, it must be deemed to have conveyed the official
semantics attached to that expression, namely, removal from
service plus a ban on reemployment by the State. The non-
enumeration of ’removal’ as a distinct form of punishment
does not divest the appointing authority from exercising,
subject to legal restrictions, the power to remove from
service without inflicting the more serious punishment of
dismissal. [864 C; F]
861
(2) The words ’dismissals and ’removal’ have one
distinction, namely, that the former disqualifies from
future employment while the latter does not. Therefore,
dismissal is removal with a prohibition super-added. [864 H;
865 D],
Khem Chand v. Union of India [1958] S.C.R. 1080, 1089 and
Shyamlal’s case, A.I.R. 1954 S.C. 369, 374, refer-red to.
(3) (a) "Dismissal" removes the man from his office and
super-adds debarment from re-employment. Such being its
meaning in the Indian Constitution, in the relevant rules
which have been in force in this country over the decades;
"dismissal" has to be understood, as punishment imposed upon
the constable in this case, as one which embodies the latent
penalty of disability from being. re-employed. [866 B]
(b) Rule 16(2) (iii) does not state "in other cases of
dismissal" the bat against re-employment operates only where
there is publication in the Police Gazette to that effect.
Dismissal, as such, carries with it this additional penalty
in both classes of cases but in the first category covered
by the rule, publication is a duty cast upon the authority
while in the second category the authority is left with the
option to publish or not to publish. If the dismissing
authority desires to ensure itself that unwittingly some
other department may not employ the dismissed official, it
may, by way of abundant caution, resort to publication of
the punishment in the Police Gazette. The language is clear
that to ensure that the officer dismissed shall not be re-
employed the concerned authority shall send for publication
the relevant particulars. Not that without such publication
a right to re-employment inheres in the dismissed official,
but that to make sure that any unknowing slip may not be
committed by another department. the dismissing officer may
take care to forward the particulars of punishment for
proper publication. It is enabling, so far as the
dismissing authority is concerned, and is legally
unnecessary to spell the two-in-one punishment of’
dismissal. [866 C-E.]
ARGUMENTS
For the Appellant :
From a plain reading of s. 6-K of the U.P. Town Areas Act it
is clear that if a man is dismissed from service of a local
authority, Central Government or State Government by way of
punishment and is debarred from re-employment thereunder, he
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cannot contest the election for the Chairman of the Town
Area Committee. From a plain reading of s. 6-K it becomes
clear that the intention of the legislature in enacting this
law was that the persons who have been dismissed from
service by way of punishment will not be qualified for
election to, the post of Chairman. Town Area Committee.
This section contemplates only such dismissed servants who
have been dismissed from service by way of Punishment for
misconduct. and Indiscipline.
For Respondent Vol. I
Respondent no. 1 was removed from the Delhi Police Service
and was not a dismissed servant within the meaning of s. 6-K
of the U.P. Town Area Act. The words ’dismissed servant’
used in s. 6-K in that Act were used in a broader sense and
meant a servant whose services were terminated. The words
’and is debarred from re-employment therein used in that
section clearly indicate that the election petitioner will
have to prove that the services of respondent No. 1 were
terminated and he was debarred from re-employment. Section
7 of the, Indian Police Act and r. 16(2)(iii) of the Punjab
Police Rules were applicable to Delhi.
If a Police Officer is convicted by a Court of law and is
dismissed as a result of the departmental enquiry in
consequence of corrupt practices, such dismissal would ipso
facto mean dismissal by way of punishment. However. if the
termination of service was on account of any other reason,
then if die authority terminating the services desires. to
ensure that the officer dismissed shall not be re-employed
elsewhere, a full descriptive roll with particulars of the
punishment hall be sent for publication in the Police
Gazette in the present case the ser-
862
vices of the respondent no. 1 were terminated in
departmental inquiries, the dismissal was not on account of
corrupt practice failing under the first part of r.
16(2)(iii) of the Punjab Police Rules. Secondly there was
no publication in the Police Gazette. It must therefore
follow that it was a case of removal and not dismissal.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1200 of
1974.
Appeal by special leave from the judgment and order dated
the 4th April, 1973 of the Allahabad High Court in Special
Appeal No. 34 of 1973.
R. K. Jain, N. R. Choudhary, Rajesh Prasad Singh and K. K.
Mohan, for the appellant.
J. P. Goyal and G. S. Chatterjee for respondent No. 1.
The Judgment of the Court was delivered by
KRISHNA IYER, J.A single legal issue presents itself for
,solution in this appeal. The question is whether a public
servant dismissed for misconduct is not ipso jure disbarred
from employment under the State. If ’yes’, the 1st
respondent is ineligible for the public. office of
Chairmanship of Town Area Bugirasi from where, he has been
removed on the ground of dismissal from government service,
resulting in the eruption of this election dispute. If
’no’, restoration to the lost office inevitably follows.
The appellant and 1st respondent were rivals for
Chairmanship of Town Area Bugrasi in U.P. The latter, a
dismissed police constable, was returned by the electorate
and the former, chagrined by the defeat, successfully
petitioned the Election Tribunal.
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The Ground
The appellant and the 1st respondent were two of the three
candidates for Chairmanship of the Town Area of Bugrasi.
The 1st respondent secured the highest number of votes and
was declared elected by the Returning Officer. Thereupon
the appellant moved the statutory tribunal by an election
petition which was allowed on the seore of disqualification
for being chosen as Chairman by virtue of S. 6 K of the U.P.
Town Areas Act (Act II of 1914). The disqualification
stemmed from dismissal of the 1st respondent on September
26, 1963 from the Delhi Police Force. When the Election
Tribunal set aside the 1st respondent’s election and
declared the appellant as the Chairman, the unseated
candidate invoked the writ jurisdiction of the High Court.
The learned Single Judge who heard the petition affirmed the
order of the Tribunal substantially but in relation to the
relief directed against the declaration of the appellant as
Chairman, the order was vacated. That question was left to
be decided afresh in the light of certain observations of
the learned Judge. Dissatisfied’ by the result, of both the
appellant and the 1st respondent filed Writ Appeals before a
Division Bench of the High Court which ended in the
allowance, of the claim of the 1st respondent to be Chairman
and consequential dismissal of the appeal of the other. The
aggrieved appellant has, therefore, come up to this Court by
special leave for relief based on the construction of two
slightly ambiguous rules having some impact on this village
election.
863
Before opening a political chapter, respondent No. 1 had
ended his official career as police constable under
dismissal order dated September 26, 1963
"Constable No. 3048 Sarfraz Ahmad Khaa is
dismissed from the forenoon of 25-9-1963 of
having been in illicit relation with Mrs.
Chatterjee and her daughter. The conduct of
the constable is most reprehensible,
adulterous and unworthy of a Police Officer
who is supposed to protect the Society from
such vices."
He ran for Panchayat Chairmanship and won, defeating the
appellant and the 2nd respondent. The disability for
election in the present instance is said to spring from the
dismissal of the 1st respondent from government service as
aforesaid.
Let us examine the relevant legal texts. The pertinent part
of 6-K, relied on by the appellant as fatal
disqualification, reads
"6-K. Disqualification for members and
Chairman-
A person notwithstanding that he is otherwise
qualified, shall be disqualified for being
chosen as, and for being, a member or Chairman
of a Committee, if he-
(a) is a dismissed servant of a local
authority, the State or Central Government and
is debarred from re-employment therein,
Is the contesting respondent ’a dismissed servant of the
State Government and is debarred from re-employment
therein’? That is the question. The statute is of 1914
vintage, but amended from time to time, and we have to
interpret it in the light of legal provisions and
constitutional developments. Does ’dismissal’ automatically
spell, ’disbarment from re-employment’? The argument which
weighed with the High Court is that s. 6-K speaks of two
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components (a) dismissal; (b) and being debarred from
reemployment. The second ingredient is not present in the
terminal order against the constable and so the formula for
disqualification is not fulfilled.
We are not impressed with this dualism. If dismissal
simpliciter carries within it the ban on re-employment as a
necessaryjural incident then both the elements are present
implicitly in theorder. It is not as if the interdict
against re-employment should beseparately sated in the
rule or order if by force of law an effective bar in that
behalf can be read into the order cashiering the constable.
So we are thrown back on the order itself which, admittedly,
is silent on prohibition of reemployment.
Counsel for the contestant, Shri Goyal, strenuously argued
that he Police Act and the relevant rules bearing on
disciplinary action ire telling and must be treated as
decisive. Brushing aside the ripples of confusion raised in
the course of arguments about the source of power for
framing these rules-no party, at any stage, has challenged
864
the vires of the rules-we may reproduce r. 16(2)(iii) which
governs the situation. Before that, a glance at s. 7 of
the Police Act :
Subject to the provisions of Article 311 of
the Constitution and to such rules as the
State Government may from time to time make
under this Act, the Inspector General, Deputy
Inspectors-General, Assistant Inspectors-
General and District Superintendents, of
Police may at any time dismiss, suspend or
reduce any police-officer of the subordinate
ranks whom they shall think remiss or
negligent in the discharge of his duty or
unfit for the same."
It is clear that s. 7 speaks of dismissal as a single
category of punishment, not as two twigs from the same
branch i.e., dismissal without and with embargo on re-entry
into State service. It may, however, be noticed that there
is no specific reference to removal from service, a
recognised form of punishment sanctified by the Constitution
Acts, including Art. 311. Since s. 7 expressly subjects
itself to the paramount law of the Constitution it is
obvious that the power to remove is not eroded and vests in
the appointing authority apart from the power to dismiss.
Indeed, the Central and State rules regulating disciplinary
control, all over the country, have, for a long period, made
distinction between dismissal and removal, the former
carrying the more injurious incident of removal plus refusal
of future re-employment. Anyone conversant with
disciplinary control of government servants in India will
agree that this fundamental difference between mere removal
and dismissal exists. Art. 311 enumerates dismissal and
removal as two different punishments, one more serious than
the other. It is perfectly plain that, understood in this
environment of legal control of government servants
prevalent historically in this country, s. 7 of the Police
Act, when it uses the expression ’dismissal, must be deemed
to have conveyed the official semantics attached to that
expression, viz., removal from set-vice plus a ban on re-
employment by the State. The non-enumeration of ,removal’
as a distinct form of punishment does not divest the
appointing authority from exercising, subject to legal
restrictions the power to remove from service without
inflicting the more serious Punishment of dismissal.
The expressions ’dismissal’ and ’removal’ look alike for the
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laity but in law they have acquired technical meanings
sanctified by long usage, in Service Rules. In Khem Chand
v. Union of India(1) this Court observed :
".. the expressions ’dismissed’, ’removed’ and
’reduced’ in rank’ are technical words taken
from the service rules where they, are used to
denote the three major categories of
punishment’."
As been rightly pointed out in a recent book(2), the words
’dismissal’ and ’removal’ have one distinction, viz., that
the former dis-
(1) [1958] S.C.R. 1080,1089.
(2) The Civil Servant under the Law and the Constitution-by
Dr. N. Narayanan Nair-The Academy of Legal Publications,
Trivandrum-1, Kerala (1973).
865
qualifies from future employment while the latter does not.
Likewise, there is reference to this distinction in
Shyamlal’s Case(1) wherein it was said:
"The position, therefore, is that both under
the rules and according to the last mentioned
decision of the Judicial Committee (I.M. Lal’s
Case: AIR 1948 PC 121) there is no distinction
between a dismissal and a removal except that
the former disqualifies from future employment
while the latter does not... and it may be
safely be taken, for reasons stated above,
that.... removal and dismissal stand on the
same footing except as to future employment.
In this sense removal is but a species of
dismissal."
Rule 49 of the Civil Services (Classification, Control &
Appeal) Rules,.1930 provides inter alia :
"Removal is termination of service which does
not disqualify from future employment.
Dismissal is ;removal from service which
ordinarily disqualifies from future employ-
ment."
It follows that ’dismissal’ is ’removal with a prohibition
super-added’.
Against this background, here is r. 16(2) (iii) of the
Punjab Police Rules which applied during the relevant time
to the 1st respondent:
"16(2)(iii). When a Police Officer is
convicted judicially and dismissed, or
dismissed as a result of a departmental
enquiry, in consequence of corrupt practice,
the conviction and dismissal and its cause
shall be published in the Police Gazette. In
other cases of dismissal, when it is desired
to ensure that the Officer dismissed shall not
be re-employed elsewhere, a full descriptive
roll, with particulars of the punishments,
shall be sent for publication in the Police
Gazette".
The submission made with some attractiveness, by Shri Goyal
receives verbal support from the text of the rule. It
speaks of a police officer being dismissed in consequence of
’corrupt practice’ in which case there is a mandate to the
State Government that ’its cause shall be published in the
Police Gazette’. ’In other cases of dismissal’ the
provision for publication in the Police Gazette is
facultative. Counsel spins out the argument that if ’in
other cases of dismissal’ the authority intends to inflict
the additional penalty of non-reemployment, it should also
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publish the punishment in the Police Gazette. In the
present case there is no indication of any such publication
and so the dismissal does not carry with it the forbidding
factor regarding re-employment. Read with s. 6-K, which
refers to dismissal together with debarment from re-
employment, the conclusion is sought to be drawn that the
1st respondent’s case does not attract the disqualification
in s. 6-K.
(1) A.I.R. 1954 S.C. 369, 374.
866
We do not agree.The reasons are two-fold. As earlier
explained,every ’dismissal’ hasa double consequence
understood in its contextual connotation.It removes the
man from his office and superadds debarment from
reemployment. Such being its meaning in the Indian
Constitution, in the relevant rules which have been in force
in the country over the decades and indeed has become part
of our officialese, we have to understand the dismissal as
punishment imposed upon the constable in this case as one
which embodies the latent penalty of disability from being
re-employed.
Secondly, even r. 16(2) (iii) carefully scanned, refuses to
yield the helpful inference drawn from it by counsel for the
1st respondent. That rule does not state ’in other cases of
dismissal’ the bar against re-employment operatesonly where
there is publication in the Police gazette to that effect. Dismiss
al,
as such, carries with it this additional penalty inboth
classes of cases but in the first category covered by the
rule,publication is a duty cast upon the authority
while in the second type of cases the authority is lift with
the option to publish or not to publish. If the dismissing
authority desires to ensure itself that unwittingly some
other department may not employ the dismissed official, he
may, by way of abundant caution,-resort to publication of
the punishment in the Police Gazette. The language is clear
that to ensurethat the officer dismissed shall not be
reemployed the concernedauthority shall send for
publication the relevant particulars.Not that without
such publication a right to re-employment inheres in the
dismissed official, but that to make sure that any unknowing
slip may not be committed by another department, the
dismissing officer may take care to forward the particulars
of punishment for proper publication. It is enabling so far
as the dismissing authority is concerned and is legally
unnecessary to spell the two-in-one punishment of dismissal.
In this view of the matter there is no escape from the
conclusion that the 1st respondent was punished under the
former part of r. 16 (2) (iii) and incurred the extreme
wrath of the law including disbarment from re-employment.
Logically therefore he suffered disqualification under s. 6-
K of the Act and the Tribunal, in removing him from
Chairmanship, acted legally.
No other point has been urged before us and therefore we
allow the appeal and affirm the learned Single Judge’s
judgment. In the circumstances of the case we direct that
the parties will bear their costs in this Court. The costs
of the appellant in the courts below will be paid by the 1st
respondent.
P.B.R.
Appeal allowed.
867