Citation Codes

Equivalent Citations

citation codes

Case Number

O.C.J Appeal No. 30 of 1960 and Miscellaneous Application No. 285 of 1959

Judges

J.R Mudholkar
A.C.J
S.M Shah, J.

Acts

sub-rule (1) and in clauses (vii) and (viii) of sub-rule (2) of rule 3
Government service.10. Sub-rule (2) of r. 3
itself.15. Sub-rule (2) of r. 17
clause (c) in sub-section (2),
superintendence.9. Rule 3
increments.11. Rule 4
(2) of r. 3. Rule 15
rule.12. Rule 7
13. Rule 18

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Smart Summary

Structured Summary of the Opinion (A.B. Ashtekar)

Factual and Procedural Background

The petitioner (appellant) was a Sub‑Inspector of Police serving at Poona in 1957 and attached to the Shukrawar Peth Police Chowkey in September 1957. A report was made that Balkrishna R. Gogate had left home on 8 September 1957, taking ornaments worth Rs. 4,000. Balkrishna was traced on 25 September 1957. The appellant went to Bhor in a special taxi and informed R.P. Gogate that his son had been traced.

Charges were framed on 25 November 1957 by the District Superintendent of Police (D.S.P.) alleging serious misconduct and gross dereliction of duty on various particulars, including failure to record the boy's statement or draw up a panchnama, travelling to Bhor without permission, making a false diary entry, failing to report to his Inspector, unauthorised removal of Rs. 160 from the boy, and demanding an illegal gratification of Rs. 200 from the boy's father.

The D.S.P. found the first four charges proved but not the last two, and ordered reinstatement with a reduction in pay by Rs. 30 per month for two years (from Rs. 150 to Rs. 120). The appellant, who had been under suspension, was thus reinstated with reduced pay.

On 6 March 1959 the State Government (through its Home Department Secretary) issued a show cause notice stating it accepted the Inquiry Officer's findings on counts 1–4 but not counts 5 and 6, and stated that in its opinion the appellant was guilty on the 6th count (demanding a bribe), though not of the exact sum of Rs. 200. The State proposed to enhance punishment to dismissal and asked the appellant to show cause within 30 days. The appellant replied on 5 May 1959. On 12 June 1959 the State Government dismissed the appellant from service. An appeal to the State Government was unsuccessful on 9 September 1959.

The appellant petitioned this Court under Article 226; the petition was rejected by Mr. Justice Mody in Misc. Petition No. 285 of 1959. The appellant then appealed under clause 15 of the Letters Patent. Mr. Paranjape represented the appellant and advanced three principal points on appeal.

Legal Issues Presented

Whether the State Government has power under the Rules framed under the Bombay Police Act, 1951 to convert an acquittal into a conviction and to enhance punishment.
Whether the appellant was given a reasonable opportunity to defend himself before the State Government (implicating Article 311 protections and procedural fairness in the show cause/revisional process).
Whether the State Government could legally enhance the appellant's punishment and dismiss him after he had been reinstated, particularly after a lapse of more than a year from the date of reinstatement.

Arguments of the Parties

Appellant's Arguments (Mr. Paranjape)

The Rules conferring revision power on the State Government do not permit the State to interfere with an order of acquittal passed under the Rules; in particular, an acquittal cannot be converted into a conviction by State revision powers.
The appellant was not given a reasonable opportunity to show cause before the State Government had made up its mind, thereby violating the protections of Article 311 and depriving him of fair procedure.
Once the District Superintendent of Police had reinstated the appellant and imposed a reduction in pay, the State Government could not thereafter revisit and enhance the punishment to dismissal, especially after more than a year had elapsed since reinstatement.

Respondent's Position (as reflected in the opinion)

The respondent agreed with the Inquiry Officer and D.S.P. findings on the first four counts but did not accept the findings on counts 5 and 6 and considered the appellant guilty of having demanded a bribe (though not necessarily the specific sum of Rs. 200).
The respondent issued a show cause notice proposing enhancement of punishment to dismissal and, after considering the appellant's reply, dismissed him from service on 12 June 1959.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Gabrial Pedroo v. Dy. Commissioner of Police, Division South and Port, Bombay	Establishes that the State Government's supervisory/revisional power (including clause (c) of s. 25(2) and s. 4 of the Act) permits it to exercise control over and revise orders made by subordinate authorities; a subordinate authority's exercise of power is subject to State Government orders.	The Court relied on this decision to reject the appellant's contention that once the District Superintendent had acquitted or otherwise dealt with the appellant the State Government could not revisit or revise that decision; the Court held that the State Government retained the power to hold the appellant guilty and impose dismissal.

Court's Reasoning and Analysis

The Court's analysis proceeds by close reading of the relevant statutory provisions of the Bombay Police Act, 1951 and the Rules framed thereunder (Part IV‑B of the Bombay Government Gazette, May 3, 1956). The Court identifies and applies the following legal points set out in the opinion:

Statutory framework and delegations:
- Section 25(1) and (2) of the Act empower the State Government or officers authorised under sub‑s. (2) (including the District Superintendent of Police in respect of officers subordinate to him) to inflict punishments up to dismissal.
- Clause (c) of sub‑s. (2) provides that the exercise of powers by those officers is subject to rules and orders made by the State Government; Section 4 vests superintendence of the police in the State Government.
Construction of Rule 17:
- Rule 17(1) states the State Government alone has power of revision, and that revision shall lie only in respect of punishments which are appealable. The Court distinguishes the two parts: the limitation in the second part applies to revision applications brought by aggrieved persons, not to action the State Government may itself take.
- Rule 17(2) provides that the State Government may, of its own motion or otherwise, call for records and has broad powers to confirm, modify, reverse, direct further inquiry, reduce or enhance punishment, or make any order deemed fit; and it contains a proviso that if enhancement is proposed, the officer shall be given an opportunity to show cause.
- The Court interprets the plain language of Rule 17(2) to mean the State Government has express power to revise and to convert an order of acquittal into one of conviction when it exercises the revisional jurisdiction conferred by the Rule.
Rejection of the appellant's primary contention:
- The Court holds that the appellant's reading of Rule 17 (that the State cannot interfere with acquittals because no appeal lies from acquittal) is incorrect because it ignores Rule 17(2)'s separate provision empowering the State Government to call for records and make any order it deems fit, including enhancing punishment.
- The Court notes that Mr. Paranjape accepts that revisional jurisdiction is conferred on the State Government under s. 4 and s. 25(2)(c); the Court confirms that these statutory provisions and Rule 17 together authorize the State to revise subordinate orders including acquittals.
On concurrency of powers (argument that once a subordinate declines to punish the State cannot later punish):
- The Court relies on Gabrial Pedroo to reject the contention that the subordinate authority's decision precludes the State Government from revising or exercising its power; clause (c) of sub‑s. (2) and Section 4 demonstrate that subordinate exercise of power is subject to State Government orders.
On procedural fairness / Article 311 argument:
- The appellant argued that the State Government had made up its mind before issuing the show cause notice and so he had not been given a real opportunity to be heard. The Court treats this as mixed question of fact and law and observes that the appellant needed to make specific averments in his petition to establish that the State's mind was closed prior to hearing. Because such specific averments were absent, the Court declines to entertain this argument.
On time‑bar / lapse since reinstatement:
- The Court finds there is no statutory period of limitation within which the State Government must call for records and exercise its revisional jurisdiction; consequently, the lapse of time (about a year after reinstatement) did not preclude the State from enhancing punishment and dismissing the appellant.
Conclusion of analysis:
- Given the statutory scheme and Rules (particularly Rule 17(2)), and consistent authority in Gabrial Pedroo, the Court determines the State Government had power to call for the records, to convert the subordinate order (reinstatement with reduced pay) into an order of dismissal, subject to the procedural requirement of affording a show‑cause opportunity (which the record shows was given).

Holding and Implications

Holding: The appeal is dismissed and the order of the learned single Judge (Mr. Justice Mody) is affirmed. The Court held that the State Government had lawful power under the Rules and the Bombay Police Act to call for the records, revise the subordinate order, and enhance the punishment to dismissal. The Court also held the appellant had not made the necessary specific averments to sustain the contention that he was deprived of a fair opportunity to be heard, and there is no statutory limitation preventing revision after reinstatement.

Implications:

The direct effect on the parties: the State Government's order dismissing the appellant from service stands; the appeal is dismissed. The Court made no order as to costs, but granted liberty to the respondent's attorneys to withdraw Rs. 250 out of Rs. 500 deposited by the appellant, and permitted the appellant to withdraw the balance.
The opinion interprets Rule 17(2) and relevant statutory provisions as conferring broad revisional powers on the State Government, including power to revise acquittals arrived at by subordinate authorities. The Court applied existing authority (Gabrial Pedroo) rather than announcing a new legal principle.
No wider or novel precedent beyond application of the statutory scheme and existing authority was stated as being established by this decision; the judgment affirms the State's revisional competence under the Act and Rules and resolves the appellant's three contentions against him.

Other information from the opinion: The respondent's solicitor is recorded as G.M. Divekar. The Court made no order as to costs of the appeal.

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Arjunrao Baburao Ashtekar v. The State Of Bombay

Mudholkar, A.C.J:— This is an appeal from the judgment of Mr. Justice Mody in Miscellaneous Petition No. 285 of 1959 preferred by the appellant under art. 226 read with art. 311 of the Constitution.

2. The petitioner was a Sub-Inspector of Police in the State of Bombay and was serving at Poona in the year 1957. He was attached to the Shukrawar Peth Police Chowkey in September, 1957. One R.P Gogate of Bhor made a report to the Police of Poona some time after September 8, 1957, that his son Balkrishna had left his house at Bhor on September 8, 1957, and had taken away with him ornaments valued at Rs. 4,000. A search for Balkrishna was made in Poona, and ultimately he was traced on September 25, 1957. It may be mentioned that R.P Gogate went back to Bhor after making the report to the police regarding the disappearance of his son. Immediately after Balkrishna was traced the appellant went to Bhor in a special taxi and informed R.P Gogate of the fact that his son had been traced. The principal allegation against the appellant was that he had demanded Rs. 200 as illegal gratification from R.P Gogate. Another allegation against him was that he had misappropriated a sum of Rs. 160 which he had found with Balkrishna after the latter was traced. A preliminary enquiry was held in respect of these allegations and thereafter on November 25, 1957, the District Superintendent of Police, Poona City, framed the following charges against him:—

“Charges against P.S.I, A.B Ashtekar of Karashkhana Police Station, Poona City.

Serious misconduct and gross dereliction of duty in that you P.S.I, A.B Ashtekar, while on duty at the Shukrawar Peth Chowkey on 25-9-57 and 26-9-57, conducted an inquiry improperly into a theft committed by a boy named Balakrishna Raghunath Gogate and acted in a highly irregular and objectionable manner as described below:—

(1) You did not record the statement of the boy nor did you draw up a panchnama of his belongings;

(2) You went to Bhor for further investigation without permission from any superior officer;

(3) You made a false entry in your weekly diary that you did night rounds on 25-9-57 when actually you had been to Bhor;

(4) You made no report to your Inspector about this investigation;

(5) You unauthorisedly removed Rs. 160/- from the person of the boy and did not account for the amount;

(6) You demanded an illegal gratification of Rs. 200/- from Shri Raghunath Parshuram Gogate, father of the boy for hushing up the matter.”

3. The District Superintendent of Police came to the conclusion that the first four charges had been established, but not the last two and thereupon he made the following order:—

“I, the undersigned, do hereby reinstate P.S.I, A.B Ashtekar in service and reduce him in pay by Rs. 30/- p.m (i.e from Rs. 150/- to Rs. 120/-) for a period of two years exclusive of any leave except C.L w.e.f 25-3-1958 (A.N).

This reduction in pay will not affect his future increments.

The period of suspension is treated as such.”

4. As a result of the aforesaid order of the D.S.P the appellant, who was under suspension during the enquiry against him, was reinstated, but his salary was reduced to Rs. 120 per month.

5. On March 6, 1959, the respondent through its Secretary, Home Department, issued a show cause notice against the appellant. In that notice it is stated that the respondent agreed with the findings of the Inquiry Officer on the first four counts of the charge, but that the respondent did not accept the findings on the 5th and the 6th counts. The notice, further stated that the respondent regarded the appellant to be guilty for the reasons stated in the notice on the 6th count also. Then the notice proceeded to state that in the opinion of the respondent it had been proved that the appellant had been guilty of the charge of demanding some bribe, though not of demanding the specific sum of Rs. 200 as bribe as mentioned in count No. 6. The notice also stated that the punishment of deduction in pay awarded to the appellant by the District Superintendent of Police, Poona, was inadequate, that the respondent proposed to enhance that punishment to that of dismissal from service and called upon the appellant to show cause within 30 days from the date of the receipt of that notice why the proposed punishment of dismissal from service should not be imposed upon the appellant.

6. The appellant submitted his written statement or reply on May 5, 1959. In his reply, he not only urged reasons for not enhancing the punishment, but also for not accepting the findings of the D.S.P on the first four counts. Upon a consideration of this reply of the appellant, the State Government passed an order on June 12, 1959, dismissing the appellant from service. The appellant preferred an appeal from this decision before the State Government itself. On September 9, 1959, he was, however, informed by the State Government that after careful consideration of his case the State Government saw no reason to alter the decision.

7. The appellant thereupon preferred a petition before this Court under art. 226 of the Constitution. As already stated, this petition was rejected by Mr. Justice Mody. The appellant has, therefore, come up before us in appeal under cl. 15 of the Letters Patent. Mr. Paranjape, who appears for him, has urged three points before us. Those points are as follows:—

1. The State Government has no power under the Rules framed under the Police Act to convert acquittal into conviction and enhance punishment.

2. No reasonable opportunity was given to the appellant to defend himself in the proceedings before the State Government.

3. The State Government could not legally enhance the appellant's punishment after his reinstatement and after a lapse of more than a year from the date of his reinstatement.

8. The argument of Mr. Paranjape is that the Rules which confer revisions power upon the State Government do not empower the State Government to interfere with the acquittal of a person who has been proceeded against under the Rules. In order to appreciate the argument, it is necessary to refer to certain provisions of the Bombay Police Act, 1951. Section 25 of the Act deals with punishment of the members of the subordinate ranks of the Police Force departmentally for neglect of duty, misconduct etc. sub-section (1) of that section provides that the State Government or any Officer authorised by sub-s. (2) in that behalf, may inflict certain punishments including dismissal from service upon an Inspector or any member of the subordinate ranks of the Police Force for certain kinds of offences. sub-section (2) of that section states that the Inspector-General of Police, the Commissioner of Police and the Deputy Inspector-General of Police shall have power to punish all the aforesaid persons under sub-s. (1). It further provides that the District Superintendent of Police shall have the like authority in respect of any Police officer subordinate to him below the grade of Inspector. The appellant before us was, as already stated, a Sub-Inspector and, therefore, under sub-s. (2) it was open to the District Superintendent of Police, Poona, to whom he was subordinate, to inflict punishment on him including the punishment of dismissal. Clause (c) of sub-s. (2) provides that the exercise of the powers conferred by sub-s. (2) shall be subject to such rules and orders as may be made by the State Government in that behalf. In pursuance of the power conferred by this clause of sub-s. (2) the State Government has framed certain Rules which are to be found in Part IV-B of the Bombay Government Gazette dated May 3, 1956, at page 669. We shall refer to the relevant Rules a little later. Section 27 of the Act provides for an appeal from the order of punishment. Section 4 of the Act provides that the superintendence of the Police Force throughout the State of Bombay vests in and is exercisable by the State Government and any control, direction or supervision exercisable by any officer over any member of the Police Force shall be exercisable subject to such superintendence.

9. Rule 3 deals with the punishments which may be imposed upon any police officer. Clauses (i), (ii) and (iii) of sub-r. (1) of that Rule specify those punishments and run thus:—

“(i) reduction in rank, grade or pay or removal from any office of distinction or withdrawal of any special emoluments;

(ii) removal from service which does not disqualify from future employment in any Department other than the Police Department;

(iii) dismissal which disqualifies from future employment in Government service.”

10. Sub-rule (2) of r. 3 provides for the following eight kinds of punishments which may also be awarded in certain eases:—

“(i) Caution.

(ii) A reprimand (to be entered in the service book).

(iii) Extra drill.

(iv) Extra duty.

(v) Black mark.

(vi) Stoppage of leave.

(vii) Fine not exceeding one month's pay.

(viii) Stoppage of increments.”

11. Rule 4 provides that no punishment specified in cls. (i) to (iii) of sub-r. (1) and in cls. (vii) and (viii) of sub-r. (2) of r. 3 shall be imposed on any Police Officer unless a departmental inquiry into his conduct is held and a note of the inquiry with the reasons for passing an order imposing the said punishment is made in writing by the Inquiry Officer. Rule 6 is important and we would reproduce it. It runs thus:—

“Every police officer on whom any of the punishments specified in clauses (i) to (iii) of sub-rule (1) and in clauses (vii) and (viii) of sub-rule (2) of rule 3 is inflicted shall have a right to appeal to the authority specified under rule 9 against an order of the punishment:

Provided that no second appeal shall lie under this rule.”

12. Rule 7 provides that no appeal shall lie against an order inflicting any of the punishments specified in cls. (i) to (vi) of sub-r. (2) of r. 3. Rule 15 specifies the matters which are to be considered by the Appellate Authority while dealing with an appeal. It is not necessary to reproduce that rule in extenso. Rule 17, which is the one with which we are concerned in this case, runs thus:—

“17. (1) The State Government shall alone have the power of revision and revision shall lie only in respect of punishments which are appealable.

(2) The State Government may, of its own motion or otherwise, call for the record of any case in which an order has been made by an authority subordinate to it in the exercise of any power conferred on such authority by these rules and may—

(a) confirm, modify or reverse the order, or

(b) direct that further enquiry be held in the case, or

(d) make such other order in the case as it may deem fit:

Provided that where it is proposed to enhance the punishment inflicted by any such order, the Police Officer concerned shall be given an opportunity of showing cause against the proposed enhancement.

(3) Every application for revision shall be made within two months of the date on which the applicant was informed of the orders complained against. The State Government may, in its discretion, for good cause shown, relax that period.”

13. Rule 18 confers revisional powers on the Inspector-General of Police in certain cases.

14. Mr. Paranjape contends that under sub-r. (1) of r. 17 a revision can lie only at the instance of a person who has been punished after a departmental inquiry and that there is nothing in that part of r. 17 which confers a power upon the State Government to entertain a revision application to interfere with an order of acquittal passed against a Police Officer and convert his acquittal into a conviction. According to him, the power of the State Government to interfere in revision is confined only to those cases where an appeal lies. Since no appeal is provided for in the Rules against an order of acquittal, passed in favour of a police officer, Mr. Paranjape argued that the acquittal cannot be challenged in revision. It seems to us that argument of Mr. Paranjape ignores the specific provision of sub-r. (2) of r. 17. Before we deal with it, we would like to observe that sub-r. (1) of r. 17 consists of two parts. The first part is to the effect that the State Government shall alone have the power of revision. The second part is to the effect that a revision application shall lie only in respect of punishments which are appealable. Now, the second part of this Rule obviously deals with an application in revision at the instance of the aggrieved person. It does not and cannot deal with any action which the State Government itself proposes to take in revision. The simple reason for this is that where the State Government wants to interfere in revision it does not have to make an application to itself.

15. Sub-rule (2) of r. 17 also consists of two parts. The first part of this sub-rule is to the effect that the State Government may, of its own motion or otherwise, call for the record of any case etc. The second part deals with the extent or the content of the powers of the State Government in revision. Now, according to Mr. Paranjape the first part of sub-r. (2) of r. 17 confers upon the State Government only the power to call for the records “of its own motion or otherwise” and that this does not mean that it has the power to revise the order passed by a subordinate authority. We cannot accept this contention. The language used in this rule clearly indicates that the State Government is not only empowered to call for the records, but having done so it is empowered to do any of the various things enumerated in the latter part of sub-r. (2). Under the latter part of sub-r. (2) the State Government is empowered to confirm, modify or reverse the order of the subordinate authority whose proceedings it has called before itself and it is also empowered to make such other order in the case as it may deem fit. The powers conferred under the latter part of sub-r. (2) are thus wide enough to enable the State Government to convert an order of acquittal into one of conviction. The vires of this rule has not been challenged before us by Mr. Paranjape and he accepts the position that under s. 4 of the Act read with s. 25(2)(c) of the Act revisional jurisdiction is conferred upon the State Government.

16. Mr. Paranjape's next argument then was that the power conferred upon the District Superintendent of Police by sub-s. (1) read with sub-s. (2) is concurrent with the power of the State Government under sub-s. (1) of s. 25 in the matter of inflicting punishments on a Police Officer subordinate to the rank of an Inspector and that once the District Superintendent of Police, who according to him is the authority co-ordinate with the State Government, has decided not to punish a particular police officer, it was no longer open to the State Government to punish that very person. This argument of Mr. Paranjape runs counter to the decision of this Court in Gabrial Pedroo v. Dy. Commissioner of Police, Division South and Port, Bombay.1 This Court has there observed as follows:—

“Mr. Paranjpe has contended that under sub-section (1) the power to punish can be exercised either by the State Government or any officer authorised by sub-section (2). He has urged that once the power to punish has been exercised by any officer, it would not be open to Government to exercise the power again or to revise the order made by the officer concerned. This argument ignores clause (c) in sub-section (2), which states that the exercise of the power by any of the officers mentioned in clause (a) shall be subject to such orders as the State Government may make. Section 4 of the Act also provides that the superintendence of the Police Force throughout the State of Bombay vests in and is exercisable by the State Government and any control, direction or supervision exercisable by any officer over any member of the Police Force shall be exercised subject to such superintendence. clause (b) in section 5 states that the recruitment, pay, allowance and all other conditions of service of the Police Force shall be such as may from time to time be determined by the State Government by general or special order.”

17. On this view this Court rejected the argument of Mr. Paranjape. We respectfully agree with the view taken in that case and hold that the mere fact that the District Superintendent of Police had acquitted the appellant would not deprive the State Government of its power under sub-s. (1) of s. 25 to hold him guilty of the offence of having demanded a bribe and impose on him the punishment of dismissal.

18. Coming to the second contention, what Mr. Paranjape contended was that the State Government had already made up its mind when it issued the notice dated March 6, 1959, and, therefore, it could not be said that the appellant had been given a reasonable opportunity of showing cause against the action proposed to be taken against him. In other words, according to Mr. Paranjape the State Government's mind having already been made up before hearing the appellant he was deprived of the constitutional guarantee contained in art. 311. This is not purely a question of law but both a question of law and fact and, therefore, it was necessary for the appellant to make the necessary averments in the petition. If he had done so, the respondents could have had an opportunity of meeting it. In the absence of specific averments on the point, we are of the opinion that the appellant is not entitled to urge this point.

19. The third and the last contention was that after reinstatement of the appellant and more particularly after a lapse of a year or so from the date of the reinstatement, the State Government had no power to convert his acquittal in respect of one of the charges into a conviction and dismiss him from service. It is sufficient to say that there is no period of limitation within which the State Government is empowered to send for the records of the case and pass its orders in revision. There is further no rule which precludes the State Government from passing an order of dismissal against a person who had been reinstated into service by any of its subordinates and thus, there is no substance whatever in this appeal.

20. For these reasons, we affirm the order of the learned single Judge and dismiss the appeal.

21. We, however, make no order as to costs of the appeal. Liberty to the respondents' attorneys to withdraw Rs. 250 out of the sum of Rs. 500 deposited by the appellant in this Court. The balance is permitted to be withdrawn by the appellant.

Solicitor for the respondent: G.M Divekar.

22. Appeal dismissed.

Arjunrao Baburao Ashtekar v. The State Of Bombay

Structured Summary of the Opinion (A.B. Ashtekar)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments (Mr. Paranjape)

Respondent's Position (as reflected in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Arjunrao Baburao Ashtekar v. The State Of Bombay

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