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Case Number

Civ. Misc. Writ No. 1202 of 1955

Advocates

A.P. Gupta and S.S. Dhawar
Standing Counsel

Judges

Hon'ble Mr. Gopalji Mehrotra

Acts

1954, Sec. 7 of the Police Act
Sec. 7 of the Police Act

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Smart Summary

Summary of the Opinion — Mehrotra, J.

Factual and Procedural Background

The petitioner was a Sub-Inspector of Police in the U.P. Police Service since 1949 and in 1952 was posted as Second Officer at the Sarai Qila outpost in Bareilly. He investigated a criminal case (under Sections 376 and 342, IPC) and challaned an accused, Ram Gopal. The case was committed to Sessions Court and hearing began on 11 November 1952. The petitioner was required to give evidence on 13 November 1952; he arrived late, left briefly while proceedings began, and when called to give evidence the Sessions Judge suspected he was drunk. The Sessions Judge sent a D.O. to the Superintendent of Police reporting that the petitioner had appeared late and appeared drunk.

Pursuant to that communication, a departmental inquiry under Section 7 of the Police Act was instituted, the petitioner was suspended and, by order dated 10 December 1952, three charges were framed: (a) association with undesirable persons and drinking liquor while posted at the outpost; (b) failure to attend the Sessions Court till 11:45 a.m. on 13 November 1952; and (c) appearing in court in a drunken and unsteady state, unfit to give evidence.

The Superintendent of Police investigated these charges and found charge (a) not proved but held charges (b) and (c) proved, recommending dismissal. The Deputy Inspector General of Police, Northern Range, Bareilly, upheld those findings but ordered the petitioner reduced to the rank of constable (order dated 21 May 1953). An appeal to the Inspector General of Police was dismissed on 29 August 1953 and a revision to the Local Government was dismissed on 6 April 1954.

Separately, the petitioner alleged maltreatment on 21 April 1952 by the Assistant Superintendent of Police, K.L. Chhabra. The petitioner served notice under Section 80, Cr.P.C. on the Superintendent of Police and the Assistant Superintendent on 24 April 1953. After that notice, the Superintendent framed a fresh disciplinary charge (23 January 1954) alleging misconduct in sending such a notice without using proper internal channels. An inquiry followed, the Superintendent accepted the subordinate’s finding on 2 April 1954 and on 14 May 1954 the Superintendent of Police ordered the petitioner’s dismissal. An appeal against dismissal was rejected (the opinion references a confirming appeal order). The petitioner filed the present petition under Article 226 seeking quashing of the reduction and dismissal orders and the appellate confirmations.

Legal Issues Presented

Whether the departmental inquiry into the first three charges was valid where, it was alleged, mandatory Police Regulations (paragraph 490) required the Superintendent of Police himself to record oral statements but a subordinate (Deputy Superintendent of Police) recorded the District Judge’s statement.
Whether the Superintendent of Police was disqualified by bias from conducting the inquiry because the petitioner had served a notice under Section 80, Cr.P.C. alleging maltreatment by police officers and the Superintendent later caused a charge to be framed on that basis.
Whether the petitioner’s sending of a Section 80, Cr.P.C. notice (after alleging maltreatment and defamation) amounted to a breach of the Government Order (G.O. No. O-3237.II-B-32-52, dated 24 December 1952) that would justify disciplinary action under Section 7 of the Police Act.

Arguments of the Parties

Petitioner's Arguments

The Superintendent of Police violated mandatory procedure in paragraph 490 of the Police Regulations by delegating the task of recording oral evidence to a subordinate; paragraph 1(b) and paragraph 6 require that oral evidence and defence witness statements be recorded by the Superintendent himself in the presence of the accused, with opportunity to cross-examine. Because the District Judge’s statement was recorded by the Deputy Superintendent of Police (in his chambers), that statement could not be considered and therefore there was no evidence to sustain the charges.
The Superintendent was biased or at least disqualified from conducting the inquiry because, while the inquiry under Section 7 was pending, the petitioner had served a Section 80, Cr.P.C. notice alleging maltreatment on 21 April 1952; subsequently a charge was framed on the basis of that notice. It was contrary to the principles of natural justice for the same Superintendent to investigate and try the charges that arose out of that notice.
The petitioner explained his condition in court by stating he had been suffering colic since 7 November 1952 and had been given injections of morphine and atropine and a mixture containing a small quantity of brandy.

State's Arguments

The State filed a counter-affidavit challenging the allegations in the petitioner's affidavit (the opinion records a counter-affidavit was filed).
Before this Court, counsel for the State (Mr. Dhawan is recorded as arguing points for the public side) contended that, from the conduct of the Superintendent of Police, one could not conclude that he was prejudiced by the Section 80 notice; in other words, alleged bias was not established simply by the fact of the notice and the subsequent framing of a charge.
The State relied on the Government Order (G.O. No. O-3237.II-B-32-52, dated 24 December 1952) which directs government servants to seek departmental remedies first and indicates that seeking judicial decision without exhausting official channels may justify disciplinary action.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court divided its analysis according to the two main categories of complaint about the departmental proceedings and the later dismissal:

On procedural regularity under the Police Regulations (paragraph 490):
The opinion explains the relevant provisions of paragraph 490: sub-para 1(b) requires that oral evidence "if oral, must be recorded by the Superintendent of Police himself in the presence of the party charged" who shall be allowed to cross-examine; sub-para 6 requires that statements of defence witnesses be recorded by the Superintendent himself. The petitioner’s contention was that the Superintendent had no power to delegate this function to a subordinate. The Court accepted the contention had "considerable force" and held that the Superintendent had no power to delegate the recording of witnesses where the inquiry was being conducted by the Superintendent himself. Because, in the present case, the District Judge’s statement was recorded by the Deputy Superintendent of Police and not by the Superintendent, that statement could not be considered; without it, there was no evidence to prove the relevant charge(s).
On disqualification/bias of the Superintendent of Police:
The Court noted that while the State contended prejudice was not established merely by the existence of the Section 80 notice, the factual sequence was that after the petitioner served a Section 80 notice (alleging maltreatment and behaviour amounting to defamation) the Superintendent, on the recommendation of the Assistant Superintendent, framed a charge based on that notice. The Court held that it was contrary to the principles of natural justice for the Superintendent to have tried the case himself in those circumstances. On that basis the Court set aside the order passed by the Superintendent on 25 April 1953 (the opinion records an order on that date reducing the petitioner in rank).
On the dismissal dated 14 May 1954 under Section 7 of the Police Act and the Government Order:
The opinion quotes Section 7 of the Police Act (powers of I.G., D.I.G., A.I.G., and District Superintendents to dismiss, suspend or reduce subordinate officers). The Superintendent relied on the Government Order (G.O. No. O-3237.II-B-32-52, dated 24 December 1952) which instructs that grievances arising from employment or conditions of service should be pursued through departmental channels and that seeking judicial determination without exhausting internal remedies "may well justify the initiation of disciplinary action."

The Court considered the nature of the petitioner’s Section 80 notice: the petitioner alleged he had been improperly treated by officers and that their behaviour amounted to defamation. The Court observed that this complaint was not a matter "regarding the conditions of his employment or service" and therefore sending the notice did not amount to a breach of the cited Government Order. Consequently, disciplinary action based on that notice was not justified.

On the combined basis of (a) procedural irregularity in recording evidence under the Police Regulations and (b) the Superintendent’s disqualification to investigate charges arising out of the Section 80 notice, and (c) the inapplicability of the Government Order to the petitioner’s complaint of maltreatment/defamation, the Court concluded the impugned orders were not sustainable.

Holding and Implications

Holding: The petition was allowed. The Court set aside the order passed by the Superintendent of Police on 25 April 1953 reducing the petitioner in rank, the subsequent order passed by the Superintendent of Police on 14 May 1954 dismissing the petitioner from service, and the appellate orders confirming those decisions. The Court assessed costs at Rs. 100/-.

Implications:

The direct practical consequence for the parties is that the departmental orders challenged in the petition were quashed and the petitioner is relieved from the effects of the reduction in rank and the dismissal ordered by the Superintendent, together with the appellate confirmations of those orders.
The Court reached its decision on the basis of (i) mandatory procedural provisions in the Police Regulations (paragraph 490) regarding who must record oral evidence in a departmental inquiry, (ii) principles of natural justice concerning an investigating/trial authority’s possible disqualification where it is the subject of a prior complaint by the charged officer, and (iii) the factual characterisation of the Section 80 notice as not relating to conditions of employment such that the Government Order could not be invoked to justify disciplinary action. The opinion does not purport to lay down a novel rule of law beyond applying those provisions and principles to the facts of this case.

Decision rendered by Mehrotra, J., as contained in the provided opinion.

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Darbari Ram Sharma v. State Of U.P.

Mehrotra, J.:— This is an application under Art. 226 of the Constitution praying that a writ or a direction be issued quashing the order of the Deputy Inspector General of Police, Northern Range, Bareilly, dated 21st of May, 1953 whereby the petitioner was ordered to be reduced to the rank of a constable and also the order dated 29th August, 1953 passed in appeal confirming the aforesaid order, and a writ of certiorari be issued quashing the order dated 14th of May, 1954 dismissing the petitioner and the order dated 18th October, 1954 passed in appeal confirming the order of dismissal.

2. The petitioner was serving as a Sub-Inspector of Police in the U.P Police Service since the year 1949. In 1952, he was posted as Second Officer at outpost Sarai Qila in the City of Bareilly. He had investigated a case under Secs. 376/342, I.P.C and he had, in that connection, challaned one Ram Gopal. The accused in that case had been committed to the Sessions Court and the hearing of the case started from 11th November, 1952 before Sri D.S Mathur, District and Sessions Judge, Bareilly and a number of witnesses were examined. The petitioner had to appear as a witness in that case on the 13th of November, 1952. He reached the Court but it appears that he reached there late and when the case started before the Sessions Judge, he went out for a few minutes and when the statement of one Laddhan was finished, he was called to give his statement. When he gave his statement, the Sessions Judge suspected that he was drunk. The Sessions judge then sent a D.O to the Superintendent of Police saying that the petitioner appeared before him late and he was drunk when he came to the court. The petitioner's case, however, was that he was suffering from colic pain since 7th November, 1952 and he was given two injections of morphine and atropine and a mixture which contained a little quantity of brandy. On the D.O being sent by the Sessions Judge to the Superintendent of Police, a departmental inquiry under Sec. 7 of the Police Act was instituted against the petitioner. He was suspended and charges were framed against the petitioner by the Superintendent of Police, Bareilly by his order dated 10th December, 1952. Three charges were framed against him:

(a) That while he was posted at the outpost Sarai, he associated himself with undesirable persons and drank liquor.

(b) That on 13-11-1952 he failed to attend the court of the Sessions Judge, Bareilly, till 11-45 A.M, and

(c) That when on 13-11-1952 he did appear in the Sessions Court he was found in a drunken and absolutely unsteady state due to which he was not considered in a fit condition to give his evidence in court.

3. These three charges were investigated against him by the Superintendent of Police, Bareilly. When the inquiry was going on against him under Sec. 7 of the Police Act on these charges and he was under suspension, on the 21st April, 1952, it is alleged by the petitioner that he was maltreated by Sri K.L Chhabra, Assistant Superintendent of Police and on the oral complaint of Sri K.L Chhabra, the Superintendent of Police also interrogated the petitioner and ordered the detention of the petitioner. As regards the incident which took place on the 21st of April, 1952, the petitioner served a notice under Sec. 80, Cr. P.C on Sri Prem Swaroop, Superintendent of Police and Sri K.L Chhabra, Assistant Superintendent of Police of a proposed civil suit against them. That was served on them on the 24th April, 1953. After having recorded the statements of some of the witnesses, the Superintendent of Police gave his finding on the three charges against him. He found that charge (a) was not proved against the petitioner but from his statement on the record, he found both the charges (b) and (c) proved against him and along with his finding he submitted his recommendation to the Deputy Inspector General of Police, Northern Range Bareilly and recommended that he should be dismissed from service. A representation was made by the petitioner to the Deputy Inspector General of Police, Northern Range, Bareilly against the finding of the Superintendent of Police and he also personally appeared before him. The Deputy Inspector General of Police, however, upheld the finding of the Superintendent of Police but ordered that he should be reduced to the rank of a constable. The petitioner went up in appeal to the Inspector General of Police but that was also dismissed on the 29th of August, 1953. A revision was filed to the Local Government which was also dismissed on the 6th April, 1954. After receipt of the notice under Sec. 80, C.P.C it appears that the Superintendent of Police ordered that action under Sec. 7 of the Police Act should be taken against the petitioner for having sent such a notice without taking redress through proper channel and thereby committed a misconduct. On that, a fresh charge was framed against the petitioner on the 23rd of January, 1954 by the Superintendent of Police and another inquiry was held after giving him a copy of the charge-sheet. On the 2nd April, 1954, the Superintendent of Police accepted the finding of the Deputy Superintendent of Police on this charge and proposed the dismissal of the petitioner. The petitioner submitted his explanation but the Superintendent of Police passed an order of dismissal on the 14th of May, 1954. An appeal to the Deputy Inspector General of Police was rejected and consequently the present petition was filed challenging the order passed by the Superintendent of Police on the first three charges as well as the order of the Superintendent of Police dismissing the petitioner on the second charge.

4. Notices were issued to the opposite-parties.. A counter-affidavit has been filed challenging the various allegations made in the affidavit. Two points have been urged by Mr. Dhawan as regards the validity of the order passed by the Superintendent of Police on the first three charges. The first contention is that paragraph 490 of the Police Regulations provides the procedure in cases in which police officers are dealt with departmentally. Sub-para 1(b) of paragraph 490 provides that the evidence may be either oral or documentary and must be material to the charge. If oral, it must be recorded by the Superintendent of Police himself in the presence of the party charged who would be allowed to cross-examine the witnesses. Sub-para 6 under paragraph 490 also provides that the statements of the defence witnesses must be recorded by the Superintendent of Police himself. The contention of the petitioner is that the Superintendent of Police had no power to deligate his powers to record the statement of witnesses to his subordinates. Sub-para 10 of paragraph 490 only provides that all or any of the functions exercisable by a Superintendent of Police under these rules may be exercised by a Police authority superior to a Superintendent of Police, but in any case an officer inferior to the Superintendent of Police could not record the statements of witnesses in an enquiry which was being conducted by the Superintendent of Police himself. In the present case, it is admitted that the statement of the District Judge was recorded in his chambers not by the Superintendent of Police but by the Deputy Superintendent of Police. The provisions of Sub-para 1(b) of paragraph 490 are mandatory and in view of the fact that the Superintendent of Police himself did not record the statement of the District Judge, his statement cannot be considered. If his statement is not considered, then there is no evidence to prove the charge against the applicant. In my judgment, there is considerable force in this contention of the petitioner and the Superintendent of Police had no power to delegate his power of recording the statement to the Deputy Superintendent of Police.

5. The next point urged by the petitioner is that when the inquiry was being conducted by the Superintendent of Police, an incident happened on the 21st of April, 1952 and as regards that incident a notice under Sec. 80, C.P.C was given to the Superintendent of Police. In fact, on the recommendation of the Assistant Superintendent of Police, the Superintendent of Police subsequently framed a charge against the petitioner for having sent such a notice and consequently the Superintendent of Police was biased and was disqualified to make an inquiry against the petitioner. It was strongly urged by the counsel for the State that from the conduct of the Superintendent of Police, it cannot be said that he was prejudiced on account of the notice having been given to him by the petitioner. Whether he was prejudiced or not is not a matter on which this court will express its opinion but there was a notice given to the Superintendent of Police as regards the incident of the 21st of April, 1952 and on his recommendation charges were framed against the petitioner. It was against the principles of natural justice that he should have tried the case himself and investigated the charges against the petitioner. The order passed by the Superintendent of Police on the 25th April, 1953 is, therefore, set aside.

6. As regards the order passed by the Superintendent of Police on the 14th of May, 1954, Sec. 7 of the Police Act provides:

“Subject to such rules as the State Government may from time to time make under this Act, the Inspector-General, Deputy Inspector-General, Assistant Inspector-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.”

7. The charge against the petitioner was that by sending a notice to the Superintendent of Police under Sec. 80, C.P.C, he violated the provisions of G.O No. O-3237.II-B-32-52, dated December, 24, 1952 and consequently disciplinary action against him was justified. A copy of that G.O has been filed as Annexure I to the counter-affidavit filed on behalf of the State. The opening words of the G.O are that Government have from time to time issued instructions which deal generally with the circumstances and the manner in which Government servants can seek redress of grievances arising out of their employment or conditions of service. Paragraph 3 of the said G.O provides:

“In the matter of grievances arising out of a Government servant's employment or conditions of service, the proper course for him will be to seek redress from the appropriate departmental and governmental authorities in accordance with the instructions prescribed for this purpose. Any attempt by a Government servant to seek a decision on such issues in a court of law (even in cases where such remedy is legally admissible), without first exhausting the normal official channels of redress, can only be regarded as contrary to official propriety and subversive of good discipline, and may well justify the initiation of disciplinary action against the Government servant.”

8. On the 21st of April, 1952 some incident took place and in connection with that, a notice under Sec. 80, C.P.C was sent by the petitioner to the Superintendent of Police. The allegation of the petitioner was that he was not properly treated by the Superintendent of Police and other officers and the behaviour of those officers on that date amounted to defamation. That was not a matter regarding the conditions of his employment or service and consequently any notice sent by the petitioner could not amount to a breach of the provisions of the Government Order and would not justify any disciplinary action against him. In the result, I allow this petition with costs and set aside the order passed by the Superintendent of police on the 25th April, 1953, reducing the petitioner in rank and also the subsequent order passed by him on the 14th May, 1954, dismissing him from service and the other orders confirming the aforesaid orders in appeal. I assess the costs at Rs. 100/- only.

9. Petition allowed.

Darbari Ram Sharma v. State Of U.P.

Summary of the Opinion — Mehrotra, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

State's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Darbari Ram Sharma v. State Of U.P.

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