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TMI Blog1961 (3) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... nk of Inspector and placing him under suspension. An enquiry was held into the conduct of the appellant by the Superintendent of Police, Anti-corruption department. The report of the Superintendent of Police was forwarded to the Government of U.P., and the Governor acting under r. 4 of the Uttar Pradesh Disciplinary Proceedings (Administrative Tribunal) Rules, 1947 - hereinafter called the Tribunal Rules - referred the case for enquiry to a Tribunal appointed under r. 3 of the Tribunal Rules on charges of corruption, personal immorality and failure to discharge duties properly. The Tribunal framed three charges against the appellant, and after a detailed survey of the evidence recommended on February 4, 1950, that the appellant be dismissed from service. The Governor then served a notice requiring the appellant to show cause why he should not be dismissed from service and after considering the explanation submitted by the appellant, the Governor ordered that the appellant be dismissed with effect from December 5, 1950. The appellant challenged this order by a petition instituted in the High Court of Judicature at Allahabad under Art. 226 of the Constitution for a writ of certiorari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subordinate rank who discharges his duty in a careless or negligent manner or who by any act of his own renders himself unfit for the discharge thereof. 5. Section 46 sub-s. (2) authorises the State Government to make rules for giving effect to the provisions of the Act, and also to amend, add to or cancel the rules framed. The Government of Uttar Pradesh has framed rules called the Police Regulations under the Indian Police Act. Chapter 32 containing Regulations 477 to 507 deals with departmental punishment and criminal prosecution of police officers and Ch. 33 containing Regulations 508 to 516 deals with appeals, revisions, petitions etc. By Regulation 477, it is provided that no officer appointed under s. 2 of the Police Act shall be punished by executive order otherwise than in the manner provided in the chapter. Regulation 478A provides that the punishment of dismissal or removal from the force or reduction as defined in Regulation 482 may be awarded only after departmental proceedings. By Regulation 479, clause (a), full power is reserved to the Governor to punish all police officers, and by clause (b), the Inspector-General is authorised to punish Inspectors and all po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the subordinate ranks of the various police forces in India shall be such as may be determined by or under the Act relating to those forces respectively. 7. The conditions of service of the police force of the subordinate ranks were under the Government of India Act, 1935 therefore only such as were prescribed by rules framed under s. 7 and s. 46(2) of the Police Act. By the Constitution of India, the distinction between police officers and other civil servants in the matter of protection by constitutional guarantees is abolished and as from January 26, 1950, the recruitment and conditions of service of all persons serving the Union or the State are now governed by Art. 309 and their tenure by Art. 310 of the Constitution. By Art. 311, the protection granted under s. 240 cls. (2) and (3) of the Government of India Act is extended to members of the police force as well. By Art. 309, the conditions of service of public servants are made subject to the provisions of the Constitution and the Acts of the appropriate Legislature. By Art. 310, except as expressly provided by the Constitution, (i.e., except in cases where there is an express provision for dismissal of certain public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , provided the Governor may for sufficient reasons, award a lesser punishment . Rule 12 provides that nothing in the rules shall be deemed to affect the conduct of disciplinary proceedings in cases other than those specifically covered by the provisions of the Tribunal Rules. Rule 13 authorises the Governor to delegate the power to refer cases to gazetted officers in charge of districts and to pass an order of punishment under r. 10 to heads of departments. 9. Enquiry against the appellant, though commenced before the Constitution, was concluded after the Constitution, and the order dismissing him from the police force was passed in December, 1950. Under Police Regulation 479(a), the Governor had the power to dismiss a police officer. The Tribunal Rules were framed in exercise of various powers vested in the Governor including the power under s. 7 of the Public Act, and by those rules, the Governor was authorised to pass appropriate orders concerning police officers. By virtue of Art. 313, the Police Regulations as well as the Tribunal Rules in so far as they were not inconsistent with the provisions of the Constitution remained in operation after the Constitution. The authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. But the order of the Governor directing an enquiry against the appellant was passed before the Constitution, and Art. 14 has no retrospective operation : it does not vitiate transactions even if patently discriminatory which were completed before the commencement of the Constitution. In Syed Qasim Razvi v. The State of Hyderabad 1953 CriLJ 862, this court was called upon to decide whether a trial of an offender commenced before the Constitution under the Special Tribunal Regulation promulgated by the Military Governor of the Hyderabad State was, since the Constitution, invalid in view of Art. 14. Mukherjea, J. speaking for the majority of the Court observed : ..............the effect of article 13(1) of the Constitution is not to obliterate the entire operation of the inconsistent laws or to wipe them out altogether from the statute book; for to do so will be to give them retrospective effect which they do not possess. Such laws must be held to be valid for all past transactions and for enforcing rights and liabilities accrued before the advent of the Constitution. On this principle, the order made by the Military Governor referring this case to the Special Tribunal canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hough not invalid at that time precludes the adoption of a different procedure subsequently. 14. The proceedings of the Tribunal prior to the commencement of the Constitution are therefore not open to challenge except to the limited extent indicated by Mukherjea J. The question which falls to be considered is whether the procedure followed by the Tribunal after the Constitution was discriminatory and operated to the prejudice of the appellant. 15. Regulation 490 of the Police Regulations sets out the procedure to be followed in an enquiry by the police functionaries, and Rules 8 and 9 of the Tribunal Rules set out the procedure to be followed by the Tribunal. There is no substantial difference between the procedure prescribed for the two forms of the enquiry. The enquiry in its true nature is quasi-judicial. It is manifest from the very nature of the enquiry that the approach to the materials placed before the enquiring body should be judicial. It is true that by Regulation 490, the oral evidence is to be direct, but even under r. 8 of the Tribunal Rules, the Tribunal is to be guided by rules of equity and natural justice and is not bound by formal rules of procedure relatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all persons similarly situated. The power of the Legislature to make a distinction between persons or transactions based on a real differentia is not taken away by the equal protection clause. Therefore by providing a right of appeal against the order of police authorities acting under the Police Regulations imposing penalties upon a member of the police force, and by providing no such right of appeal when the order passed is by the Governor, no discrimination inviting the application of Art. 14 is practised. 16. Under r. 10 of the Tribunal Rules, the Governor is enjoined to pass an order of punishment in terms recommended by the Tribunal, whereas no such obligation is cast upon the police authority who is competent to dismiss a police officer when an enquiry is held under Regulation 490 of the Police Regulations. To the extent that r. 10 requires the Governor to accept the recommendation of the Tribunal, the rule may be regarded as inconsistent with the Constitution, because every police officer holds office during the pleasure of the Governor, and is entitled under Art. 311(2)(2) to a reasonable opportunity to show cause to the satisfaction of the Governor against the action p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to deny his guilt and establish his innocence which he can only do if he is told what the charges are leveled against him are and the allegations on which such charges are based; (b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally (c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and communicates the same to the government servant; . 20. To a police officer charged with misdemeanour, opportunity in all the three branches set out in Khem Chand's case (1959) ILLJ 167 SC is provided under the Tribunal Rules. There is opportunity to the police officer against whom an enquiry is made to deny his guilt and to establish his innocence; there is opportunity to defend himself by cross-examination of witnesses produced against him and by examining himse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procedure prescribed by r. 55, and therefore on a plea of inequality before the law, the enquiry held by the Enquiry Commissioner is not liable to be declared void because it was held in a manner though permissible in law, not in the manner, the appellant says, it might have been held. 22. In Syed Qasim Razvi's case 1953 [1953] S.C.R. 589.], it was held that if the substance of the special procedure followed after the Constitution in an enquiry or trial commenced before the Constitution is the same as in the case of a trial by the normal procedure, the plea of discrimination invalidating a trial must fail. 23. Counsel for the appellant, in support of his plea that the enquiry by the Tribunal was vitiated because it was held under a discriminatory procedure relied upon a judgment of this Bench in State of Orissa v. Dhirendranath Das A.I.R. 1951 S.C. 1715. In that case, a lower Division Assistant in the Secretariat of the Orissa Government was found guilty of certain misdemeanour by a Tribunal appointed under rules framed by the Orissa Government after an enquiry held in that behalf and was ordered to be dismissed from service. In a petition by the public servant under Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Disciplinary Proceedings (Administrative Tribunal) Rules, 1951, published by the Government of Orissa. A perusal of these rules may apparently suggest that subject to certain minor differences, these rules are substantially the same as the Tribunal Rules framed by the State of U.P. We have however not been supplied with a copy of the Bihar and Orissa Subordinate Services Discipline and Appeal Rules, 1935. The judgment of this court in The State of Orissa v. Dhirendranath Das A.I.R. 1961 S.C. 1715 can have no application to this case, because in that case, the order of the High Court was assailed on the limited ground that the High Court erred in assuming that there were two sets of rules simultaneously in operation, and it was open to the Executive Government to select one or the other for holding an enquiry against a delinquent public servant. That contention was negatived and the judgment of the High Court was confirmed. 25. We do not think that there is any substance in the plea that discrimination was practised by continuing the enquiry under the Tribunal Rules after the Constitution was brought into force. 26. This appeal is filed with a certificate under Art. 132 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant was submitted to the Government by the Inspector-General of Police and the Governor duly considered the explanation and was of opinion that the appellant was unable to clear his conduct and therefore under r. 10(1) of the Tribunal Rules the Governor ordered dismissal of the appellant from service after considering the merits of his defence. It was then urged that the application submitted by the appellant for summoning witnesses and calling for certain records was not considered and the appellant had on that account been prejudiced. In para 15 of his affidavit, the appellant stated that the Tribunal refused to call for certain records and though he wanted to summon certain defence witnesses, his application in that behalf was also refused. In answer to this averment, Hari Shankar Sharma stated that the appellant had given a long list of defence witnesses and the Tribunal asked him to select those witnesses whose evidence in the opinion of the appellant would be relevant and thereupon the appellant reduced his list to a much smaller number and all those witnesses were summoned. Then it was urged that the assessor who is required under the rules to assist the Tribunal not havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 cases relating to an individual government servant or class of government servants or government servants in a particular area only in respect of matters involving - (a) corruption; (b) failure to discharge duties properly; (c) irremediable general inefficiency in a public servant of more than ten year's standing; and (d) personal immorality. Under clause 3 of rule 1 these rules apply to all government servants under the rule-making control of the Governor. It is not disputed that these rules apply to every member of the police service in Uttar Pradesh and that the Governor may refer to the Tribunal the cases relating to any individual government servant belonging to the police department in respect of any of the matters mentioned in clause (1) of Rule 4. It is also not disputed that if the Governor does not make any such reference, the case of any such member of the police service in respect of any of these matters may be inquired into under the Uttar Pradesh Police Regulations. The co-existence of the provisions of Police Regulations on the question of departmental punishment of police officers with the Tribunal Rules, thus results in the position that of two members of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order of dismissal; but against this B has a right of appeal. It is obvious that while in the latter case B has some chance of the appellate authority taking a different view either about his guilt or about the quantum of punishment and setting aside or modifying the order, A has no such chance at all. It will be little consolation to A that the order in his case has been passed by such a high authority as the Governor. He can, it seems to me, legitimately complain that there is a real difference between the way he is treated and B is treated because of this existence of B's right of appeal against the punishing authority's order while he has no such right. Unless one assumes that the right of appeal is only in name, I do not see how one can deny that there is a legitimate basis for this complaint. I cannot agree that the right of appeal is a right without substance. Whenever one authority sits in appeal over another authority there is always a chance that the appellate authority may take a different view of facts or of law and as regards the quantum of punishment requisite, from the authority whose decision is under appeal. It is this chance which is denied, if a right o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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