Full Judgment Text
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PETITIONER:
INSPECTOR GENERAL OF POLICE AND ANR.
Vs.
RESPONDENT:
THAVASIAPPAN
DATE OF JUDGMENT: 25/01/1996
BENCH:
NANAVATI G.T. (J)
BENCH:
NANAVATI G.T. (J)
AGRAWAL, S.C. (J)
CITATION:
1996 AIR 1318 1996 SCC (2) 145
JT 1996 (6) 450 1996 SCALE (1)522
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
NANAVATI. J.
Leave granted.
A departmental proceeding was initiated against the
respondent, a Sub-Inspector of Police, on an allegation that
in January 1988, while he was working as PSI at Anthiyur
Police Station, he not only did not register a criminal case
against one Smt. Jayalakshmi for the offences found to have
been committed by her but let her off and delivered back the
seized articles after accepting a bribe of Rs.2,000/- from
her. A Deputy Superintendent of Police was appointed as an
enquiry officer. He framed the charges and served the same
on the respondent. He then held an enquiry and submitted his
report to the Deputy Inspector General of Police who was
competent to award the proposed penalty. The Dy. Inspector
General of Police agreed with the findings recorded by the
enquiry officer and imposed the penalty of compulsory
retirement by an order dated 26.3.91. The respondent filed
an appeal against that order to the Inspector General of
Police who dismissed it by an order dated 16.7.91.
The respondent then filed O.A. No. 4236 of 1991 before
the Tamil Nadu Administrative Tribunal. It was contented
before the Tribunal that only the authority competent to
award the proposed penalty could have framed and served the
charge memo and as that was done in this case by a Deputy
Superintendent of Police, only that penalty could have been
lawfully imposed upon the respondent which was within the
powers of the Deputy Superintendent of Police. As the Deputy
Superintendent of Police was not competent to award the
penalty of compulsory retirement imposition of that penalty
even by Deputy Inspector General of Police should be
regarded as illegal. It was also contended that there was no
evidence to prove the charge against the respondent. A
contention was also raised that the respondent was not given
a reasonable opportunity to defend himself. The Tribunal did
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not go into the other contentions raised by the respondent
and allowed his application as it was of the view that "the
charge memo under Rule 3(b) should be issued by the
disciplinary authority empowered to impose the penalty
specified therein and if any lower authority has initiated
proceedings by issuing the charge memo then the penalty will
be limited to those that such lower authority can award to
the delinquent concerned". As the Deputy Superintended of
Police could not have imposed the penalty of compulsory
retirement, the Tribunal set aside the order of penalty and
directed the petitioners herein to reinstate the respondent
and remitted the case back to the Deputy Inspector General
of Police to pass an appropriate order. Aggrieved by that
order the petitioners who were respondents in O.A. have
filed this appeal.
The order of the Tribunal is challenged on the ground
that it is based on an erroneous interpretation of Rule
3(b). It was submitted that Rule 3(b) does not specifically
or even by necessary implication so provide and no such
requirement can justifiably be read into it.
Rule 2 of the said Rules specifies the penalties that
can be imposed upon members of the service. Compulsory
retirement is specified is a penalty in clause (h) of that
Rule 2. A Provides that the Governor or any other authority
empowered by him by general or special order can institute
disciplinary proceeding against any member of the service.
Rule 4 specifies the authorities which can impose the
penalties prescribed in Rule 2. Rule 3 provides the
procedure that has to be followed before an order imposing
penalty is passed. If any of the minor penalties mentioned
in clauses (a), (b), (c), (e) and (f) of Rule 2 is proposed
to be imposed then comparatively simple procedure prescribed
in Rule 3 (a) has to be followed. If, however, it is
proposed to impose any major penalty specified in clauses
(d), (h), (i) and (j) of Rule 2 then the elaborate procedure
mentioned in clause (b) of that Rule is required to be
followed. Rules 3 (a) and 3 (b)(i) and 3 (b)(ii) read as
under :
"Rule 3(a) - In every case where it
is proposed to impose on a member of a
service any of the penalties mentioned
in clauses (a), (b), (c), (e) and (f) of
Rule 2 he shall be given a reasonable
opportunity of making any representation
that he may desire to make and such
representation, if any shall be taken
into consideration before the order
imposing the penalty is passed:"
"Rule 3(b)(i)- In every case where
it is proposed to impose on a member of
a service any of the penalties specified
in clauses (d), (h), (i) and (j) of
Rule 2 the grounds on which it is
proposed to take action shall be reduced
to the form of a definite charge or
charges, which shall be communicated to
the person charged together with a
statement of the allegations on which
each charges is framed and of any other
circumstances which it is proposed to
take into consideration in passing
orders on the case. He shall be
required, within a reasonable time, to
put in a written statement of his
defence and to state whether he desires
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an oral inquiry or only to be heard in
person. An oral inquiry shall be held if
such an inquiry is desired by the person
charged or is directed by the authority
concerned. At that inquiry oral evidence
shall be heard as to such of
theallegations as are not admitted, the
person charged shall be entitled to
cross-examine the witnesses to give
evidence in person and to have such
witnesses called as he may wish, rovided
that the officer conducting the inquiry
may, for special and sufficient reason
to be recorded in writing refuse to call
a witness. After the inquiry has been
completed, the person charged shall be
entitled to put in, if he so desires,
any further written statement of his
defence.
Whether or not the person charged
desired or had an oral enquiry, he shall
be heard in person at any stage if he so
desires before final orders are passed.
A report of the inquiry or personal
hearing (as the case may be) shall be
prepared by the authority holding the
inquiry or personal hearing whether or
not such authority is competent to
impose the penalty. Such report shall
contain a sufficient record of evidence,
if any, and a statement of the findings
and the grounds thereof.
(ii) After the inquiry or personal
hearing referred to in clause (i) has
been completed, and if the authority
competent to impose the penalty
mentioned in that clause,isof the
opinion, on the basis of the evidence
adduced duringthe inquiry that any of
the penalties specified therein should
be imposed on the Government servant, it
shall make an order, imposing such
penalty and it shall not be necessary to
give the person charged, any opportunity
of making representation on the penalty
proposed to be imposed."
We have not set out the provisos to Rule 3(a) and Rule
3(b)(ii) as they are not material for the purpose of this
appeal.
Before we consider the requirement of Rule 3(b) we will
refer to the three decisions cited by the learned counsel
for the appellant. He first invited our attention to the
decision of this Court in state of Madhya Pradesh Vs.Shardul
Singh 1970 (1) SCC 108. In that case a departmental enquiry
was initiated against a Sub Inspector of Police by
Superintendent of Police who after holding an enquiry sent
his report to the Inspector General of Police who ultimately
dismissed the Sub Inspector of Police from service. The
order of dismissal from service was challenged before the
High Court of Madhya Pradesh on the ground that the enquiry
held by Superintendent of Police was against the mandate of
Article 311(1) of the Constitution as he was incompetent to
conduct the enquiry. The Sub Inspector of Police was
appointed by the Inspector General of Police. The High Court
allowed the petition. The State preferred an appeal to this
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Court. Rejecting the contention that the guarantee given
under Article 311(1) includes within itself a further
guarantee that he disciplinary proceedings resulting in
dismissal or removal of a civil servant should be initiated
or conducted by the authorities mentioned in that article,
this Court held as under:
"This Article does not in terms require
that the authority empowered under that
provision to dismiss or remove an
official, should itself initiate or
conduct the enquiry preceding the
dismissal or removal of the officer or
even that enquiry should be done at its
instance. The only right guaranteed to a
civil servant under that provision is
that he shall not be dismissed or
removed by an authority subordinate to
that by which he was appointed."
This Court further held that "we are
unable to agree with the High Court
that the guarantee given under Article
311(1) includes within itself a further
guarantee that the disciplinary
proceedings resulting in dismissal or
removal of a civil servant should also
be initiated and conducted by the
authorities mentioned in that Article.
The learned counsel also drew our attention to P.V.
Srinivasa Sastry Vs. Comptroller and Auditor General 1993
(1) SCC 419, wherein this Court in the context of Article
311(1) has held that in absence of a rule any superior
authority who can be held to be the controlling authority
can initiate a departmental proceeding and that initiation
of a departmental proceeding per se does not visit the
officer concerned with any evil consequences. Transport
Commissioner, Madras Vs. A. Radha Krishana Moorthy 1995 (1)
SCC 332 was next relied upon. Therein also this Court has
held that initiation of disciplinary enquiry can be by an
officer subordinate to the appointing authority.
Thesedecisions fully support the contention to the learned
counsel for the appellants that initiation of a departmental
proceeding and conducting or enquiry can be by an authority
other than the authority competent to impose the proposed
penalty.
As to who shall initiate and conduct a disciplinary
proceeding, the Rules are silent. Rule 2 A which provides
that the Governor or any other authority empowered by him
may institute disciplinary proceedings is an enabling
provision. From the way it is worded it is not possible to
infer that the rule making authority intended to take away
the power of otherwise competent authorities, like the
appointing authority, disciplinary authority or controlling,
authority and confine it to the authorities mentioned in
Rule 2 A only. Moreover, it is difficult to appreciate how
this provision can be helpful in deciding whether the charge
should be framed and the enquiry should be held by that
authority only which is competent to impose the penalties
mentioned in Rule 3(b)(i). An act of instituting a
disciplinary proceeding is quite different from conducting
an enquiry. Rule 3(b)(i) provides how an enquiry should be
held in a case where it is proposed to impose on a member of
the service any of the penalties specified in clauses (d),
(h), and (i) and (j) of Rule 2. It lays down the
differentsteps that have to be taken in the course of the
enquiry proceedings. This Rule is completely silent as
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regards the person who should perform those acts except that
the report of the enquiry has to be prepared by the
authority holding the enquiry. Rule 3(b)(i) itself
contemplates that the enquiry officer may not be the
authority competent to impose the penalties referred to
therein and that becomes apparent from the second paragraph
of that sub-rule. If it was intended by the rule-making
authority that the disciplinary authority should itself
frame the charge and hold the enquiry then it would not have
provided that a report of the enquiry shall be prepared by
the authority holding the enquiry whether or not such
authority is competent to impose the penalty. Generally
speaking, it is not necessary that the charges should be
framed by the authority competent to award the proposed
penalty or that the enquiry should be conducted by such
authority. We do not find anything in the rules which would
induce us to read in Rule 3(b)(i) such a requirement. In our
opinion, the view taken by the Tribunal that in a case
falling under Rule 3(b) the charge memo should be issued by
the disciplinary authority empowered to impose the penalties
referred to therein and if the charge memo is issued by any
lower authority then only that penalty can be imposed which
that lower authority is competent to ward, is clearly
erroneous. We, therefore, allow this appeal. The order
passed by the Tribunal is set aside and the case is remitted
back to the Tribunal to consider the other contentions which
were raised before it and to dispose of the case in
accordance with law.