- Bookmark
- Share
- CaseIQ
The State Of Bombay v. Ganpat Dhondiba Sawant
Structured Summary of the Opinion (K.K. Desai, J.)
Factual and Procedural Background
The opinion arises from departmental proceedings and subsequent civil litigation connected with an incident on the night of September 6/7, 1949, in which a stranger was brought to the Cantonment Police Station almost unconscious and was later found in another police station's jurisdiction; the person died on the morning of September 7, 1949, from cerebral haemorrhage following skull fracture. Departmental enquiries were held; some Police Officers (including the plaintiff, a member of the subordinate ranks and specifically a Sub-Inspector) were earlier exonerated in prior enquiries. The State Government, dissatisfied with the earlier enquiry report and influenced by an opinion of the R.L.A., ordered a fresh departmental enquiry (entrusted to a senior Prant Officer, Caldeira). Following the fresh enquiry the plaintiff was dismissed by order dated January 11, 1954.
The plaintiff filed a suit (date of institution: January 9, 1957) challenging the conduct of the fresh enquiry and the dismissal; the trial Court granted a decree in favour of the plaintiff for Rs. 1,701-5-0 and interest. Both parties appealed: First Appeal No. 244 of 1959 (plaintiff) and First Appeal No. 229 of 1959 (State Government). The present opinion resolves those appeals.
Legal Issues Presented
- Whether the State Government, under s. 4 (power of superintendence) and s. 25 of the Bombay Police Act, 1951, was entitled to direct and hold a fresh departmental enquiry after a Police Officer had been exonerated in a prior departmental enquiry.
- Whether ordering a fresh enquiry in the circumstances violated principles of fairplay or natural justice.
- Whether the procedure actually adopted for the fresh enquiry (Appendix II to the Bombay Civil Services Conduct, Discipline and Appeal Rules) was improper and in conflict with the rules made under the District Police Act (continued under the Bombay Police Act, 1951), thereby vitiating the enquiry and depriving the plaintiff of statutory rights (including rights of revision).
- Whether the State Government's failure to produce the complete file relating to the first departmental enquiry at trial warranted an adverse inference against the State Government.
- Whether the plaintiff's claim for arrears of salary (Rs. 1,701-5-0) was barred by limitation, specifically whether Article 102 (wages) or Article 120 of Schedule I to the Indian Limitation Act applied.
Arguments of the Parties
Appellant (Plaintiff)
- Contended that the State Government was not entitled to direct or hold a fresh departmental enquiry after a defaulting Government servant had been exonerated in a prior duly held departmental enquiry, relying on principles of fairplay and natural justice.
- Argued that s. 4 of the Bombay Police Act, 1951 (powers of superintendence) did not empower the Government to order a fresh enquiry in matters falling under Chapter III (discipline), and that no affirmative provision existed permitting revision or fresh enquiries.
- Contended that the fresh enquiry was ordered on the same facts and evidence and was therefore arbitrary and in breach of fairplay; alternatively, that the fresh enquiry employed the wrong procedure (Appendix II to the Civil Services rules) instead of the rules under the District Police Act and so was illegal and vitiated (relying on Shantaram v. Chudasama).
- Argued that the State Government failed to produce the full file of the first enquiry at trial despite notice to produce, and that an adverse inference should be drawn that the first enquiry had been properly conducted and there was no basis for a fresh enquiry.
Respondent (State Government)
- Maintained that neither the Act nor the rules contained any specific or implied bar preventing the State Government from ordering a fresh departmental enquiry after prior exoneration.
- Pointed to s. 4 and sub-s. (1) of s. 25 of the Bombay Police Act, 1951, as reserving express power in the Government to order departmental enquiries and to impose penalties, and argued that those powers were not controlled by rules in respect of the State Government's exercise of them.
- Contended that the rules under the District Police Act (continued under the 1951 Act) apply to enquiries by the officers listed in sub-s. (2) of s. 25 but do not curtail the wider superintendence and punitive authority of the State Government under s. 4 and the first part of s. 25; therefore the State could order a fresh enquiry and could adopt procedural safeguards (e.g., Appendix II) to ensure fairness.
- Asserted that the plaintiff's claim for arrears of salary was time-barred under Article 102 of Schedule I to the Indian Limitation Act.
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 (1959 Special Civil Application No. 361 of 1959, Unrep.) | That clause (c) of sub-s. (2) of s. 25 (exercise of power by officers subject to such orders as State Government may make) and s. 4 (superintendence) permit the State Government to order further departmental enquiries or to revise action taken by subordinate officers. | The Court cited this Division Bench decision as supporting the proposition that the State Government may order further enquiry and revisit departmental action even after an officer authorised under sub-s. (2) has acted. |
| Arjunrao Baburao Ashtekar v. The State Of Bombay, 1960 62 Bom. L.R 1038 | Holds that the State Government's power under sub-s. (1) of s. 25 to punish is not lost merely because a subordinate officer (District Superintendent) had earlier acquitted the appellant. | The Court relied on this case to confirm that the State Government could order a fresh enquiry and ultimately find the officer guilty even after a prior acquittal by a subordinate officer. |
| Shantaram v. Chudasama, 1953 56 Bom. L.R 350 | Where a preliminary enquiry required by rules to be held by a specified officer (Superintendent) was instead held by an Inspector, the entire departmental inquiry was vitiated for want of jurisdiction; substantial error apparent on face of record may amount to acting without jurisdiction. | Cited by the plaintiff; the Court considered and distinguished this decision on the ground that the State Government, exercising its own punitive power under the first part of s. 25, was not bound by the procedural rules made for subordinate officers and, in any event, the protections required by those rules were observed in the fresh enquiry. |
| M.L. Vaikunthe v. The State of Mysore, [1962] 1 S.C.J 134 | The Supreme Court's determination that Article 102 of Schedule I to the Indian Limitation Act applies to claims by an officer for arrears of salary, allowances, etc. | The Court followed this Supreme Court authority to hold that the plaintiff's claim for Rs. 1,701-5-0 (part of arrears of salary) was barred by limitation and had to be rejected. |
Court's Reasoning and Analysis
The Court began by examining the statutory scheme: s. 4 of the Bombay Police Act, 1951 vests "superintendence of the Police Force throughout the State" in the State Government. Chapter III (ss. 25–27) deals with regulation, control and discipline and specifically with the authority to punish members of the subordinate ranks; s. 25 confers directly on the State Government (sub-s. (1)) and certain listed officers (sub-s. (2)) powers to suspend, reduce, dismiss or remove subordinate officers. Clause (c) of sub-s. (2) makes the exercise of powers by those officers "subject always to such rules and orders as may be made by the State Government."
From this statutory reading the Court concluded:
- There is no express restriction in the Act preventing the State Government from ordering a fresh departmental enquiry after a prior exoneration; the State Government's powers under s. 4 and the first part of s. 25 constitute express authority to enquire and to impose punishments.
- The rules framed under the District Police Act (and continued under the 1951 Act) govern departmental enquiries conducted by the officers mentioned in sub-s. (2) of s. 25, but these rules do not curtail the State Government's wide supervisory and punitive powers under s. 4 and s. 25.
- The absence of statutory provisions comparable to res judicata (s. 11 CPC), autrefois acquit (s. 403 CrPC) or Article 20 of the Constitution in the Act means the plaintiff cannot rest his case on such statutory bars; his reliance on a presumed limitation rooted in "principles of fairplay" was insufficient given the statutory scheme.
The Court considered precedent (Gabrial Pedroo and Arjunrao Ashtekar) as supporting the conclusion that the State Government may reopen matters and order fresh enquiries even after subordinate officers have acted. Decisions of certain other High Courts adopting a contrary view (refusing fresh enquiries on principles of justice and equity) were noted but the Court declined to follow them because ss. 4 and 25 of the Act supported the State Government's authority.
On the procedural complaint, the Court examined the challenge that the fresh enquiry was conducted under Appendix II of the Bombay Civil Services Conduct, Discipline and Appeal Rules (instead of the District Police Act rules). The Court observed that:
- The statutory rules made under s. 29 of the District Police Act (corresponding to cl. (c) of sub-s. (2) of s. 25) regulate enquiries by officers listed in sub-s. (2) of s. 25, but do not prescribe procedure for the State Government when it exercises its own punitive powers in sub-s. (1) of s. 25.
- No specific statutory procedure binds the State Government when it conducts departmental enquiries under its reserved powers; to ensure fairness the Government adopted Appendix II provisions and in fact provided the plaintiff all substantial protections (charge-sheet, list of witnesses, opportunity to cross-examine and to present evidence, opportunity to show cause).
- Accordingly, the Court found no merit in the contention that the enquiry was vitiated for procedural irregularity.
Regarding the failure to produce the file of the first enquiry, the Court stated that the plaintiff knew the facts of the first enquiry and could have called for or tendered any particular document at trial; there was no convincing basis to draw an adverse inference or to conclude production would have established that no further enquiry was necessary.
On limitation, the Court considered the State Government's submission that Article 102 of Schedule I to the Indian Limitation Act (three years for wages not otherwise provided for) applied to the plaintiff's claim for Rs. 1,701-5-0 (arrears that became due prior to January 29, 1951). The learned trial Judge had applied Article 120; the appellate Court followed Supreme Court authority in M.L. Vaikunthe holding Article 102 applicable to salary arrears and concluded that the plaintiff's suit (filed January 9, 1957) was time-barred in respect of that monetary claim.
Holding and Implications
Holding:
The Court's final disposition was to dismiss the plaintiff's appeal and allow the State Government's appeal. Concretely:
- The plaintiff's appeal (First Appeal No. 244 of 1959) is dismissed with costs.
- The State Government's appeal (First Appeal No. 229 of 1959) is allowed without any order as to costs.
- The decree of the lower Court dismissing the plaintiff's suit is confirmed in general. The decree in favour of the plaintiff for Rs. 1,701-5-0 and interest is reversed and set aside. The plaintiff's suit is wholly dismissed.
Implications:
- Direct effect on the parties: The dismissal of the plaintiff's suit means the plaintiff loses the challenge to the fresh departmental enquiry and the consequential dismissal; the monetary decree previously awarded to the plaintiff (Rs. 1,701-5-0) is set aside because that claim was held time-barred under Article 102 of the Limitation Act.
- On legal principle: The Court affirmed that the State Government's powers under s. 4 (superintendence) together with the first part of s. 25 confer authority to order further departmental enquiries and, where necessary, exercise punitive powers notwithstanding prior exonerations by subordinate officers. The opinion does not purport to establish a novel doctrine beyond its statutory interpretation and application of cited precedents; it explicitly distinguishes other High Court decisions that reached a contrary conclusion and follows Division Bench decisions of the Bombay High Court and the Supreme Court decision on limitation.
K.K Desai, J.:— [His Lordship after stating the facts, proceeded]. The first contention which has been made before us on behalf of the plaintiff, is as follows:—
The State Government was not entitled to direct and/or hold the fresh departmental enquiry held by Caldeira, because the scheme of the rules framed under the relevant provisions of law negatived the right in the Government to hold further enquiries after a defaulting Government servant was exonerated from the charges levelled against him in prior duly held departmental enquiry. The contention was that under s. 4 of the Bombay Police Act, 1951, the State Government in its powers of superintendence was not entitled to direct a fresh enquiry as is contended for by the written statement. The contention was developed by arguing that there was no affirmative provision for revising in fresh enquiries findings made in prior enquiries that the defaulting Government servants were not guilty of charges levelled against them. The further argument was that powers of superintendence, if any, must be exercised by observing principles of fairplay. The order of fresh enquiry on the basis of the same facts and evidence was in breach of principles of fairplay. In ordering the fresh enquiry in this case, the Government had acted arbitrarily and in violation of the principles of fairplay and/or natural justice. The powers of superintendence did not entitle the Government to act arbitrarily in the above manner. In this connection, the alternative argument was that the provisions in s. 4 of the Act were not intended to deal with and apply to the provisions in altogether another Chapter, i.e Chapter III relating to regulation, control and discipline of the Police Force. Section 4 appears in Chapter II which deals with matters specified in that Chapter and relates to superintendence, control and organisation of the Police Force. The contention was that in connection with matters dealt with under Chapter III of the Act, the provisions in s. 4 relating to powers of superintendence in the State Government were never intended to be applicable.
2. The substance of the reply of the State Government was that in all the relevant rules as well as the above Act which was admittedly applicable to the parties, there was no specific bar or even implied bar preventing the State Government from ordering a fresh departmental enquiry in connection with charges in respect whereof a prior departmental enquiry might have been held. In fact, under the provisions in s. 4 and sub-s. (1) of s. 25 of the above Act, express power was reserved so as to enable the Government to order departmental enquiries in connection with misconduct of defaulting Police Officers to decide whether penalties of various kinds should be imposed against such Police Officers. The power of the Government envisaged in the above sections was not controlled by any rules or otherwise. There were no rules which could be relied upon on behalf of the plaintiff to show that a fresh departmental enquiry cannot be ordered against Police Officers who may have been in prior enquiry exonerated of the charges levelled against them. Now, in connection with these contentions, it is first necessary to refer to the relevant provisions in the Act and also the rules which were admittedly applicable to the plaintiff's case. The plaintiff belongs to the subordinate ranks as defined in sub-s. (16) of s. 2 of the Act. Chapter II of the Act relates to superintendence, control and organisation of the Police Force. Section 4 in that Chapter provides that
“The superintendence of the Police Force throughout the State of Maharashtra 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”.
3. Chapter III relates to regulation, control and discipline of the Police Force. The important provisions in this Chapter relating to punishment of members of the Police Force and procedure to be observed in awarding punishment and also in appeals from orders of punishment are contained in ss. 25, 26 and 27. It is necessary to quote the relevant parts of the above sections here:
“25. (1) The State Government or any officer authorised by sub-section (2) in that behalf may suspend, reduce, dismiss or remove an Inspector or any member of the subordinate ranks of the Police Force…
(2)(a) The Inspector-General, the Commissioner and the Deputy Inspector-General shall have authority to punish an Inspector or any member of the subordinate ranks under sub-section (1). A District Superintendent shall have the like authority in respect of any Police officer subordinate to him below the grade of Inspector…
(ba) …
(bb) …
(c) The exercise of any power conferred by this sub-section shall be subject always to such rules and orders as may be made by the State Government in that behalf.
(3) Nothing in sub-sections (1) and (2)—
(a) shall affect any Police Officer's liability to a criminal prosecution for any offence with which he may be charged; or
26. When any officer passes an order for fining, suspending, reducing, removing or dismissing a Police officer, he shall record such order or cause…together with the reasons therefor….
Provided that no order for reducing, removing or dismissing a Police officer shall be passed without giving him a reasonable opportunity of showing cause against the action proposed to be taken against him…”.
4. Section 27 provides for an appeal against any order passed against a Police officer under s. 25 or the rules or orders thereunder to the State Government itself or to such officer as the State Government may by general or special order specify.
5. The rules applicable to the plaintiff's case were the rules enacted under the District Police Act and continuing in force at relevant times having regard to the relevant provisions in the above Bombay Police Act, 1951. Parties have found it difficult to furnish to us any clear and complete copy of the rules enacted under the District Police Act. Reference has accordingly been made to the Bombay Police Manual published in 1950 in connection with the rules made under the District Police Act. These are all to be found in Chapter XV beginning with s. 531. The relevant rules, on which reliance has been placed, are to be found by reading ss. 535, 536, 537, 556, 557, and 558 in the above Police Manual.
6. It requires to be stated that on a reading of the sections in the above Manual, it appears that they include explanations and instructions intended to be borne in mind and are not in the exact language of the rules made under the District Police Act. The relevant parts of the above rules, which need be referred to, are as follows:—
Section 535 mentions the punishments that can be awarded to Police officers including the punishments of reduction in rank, removal from service and dismissal from service. Section 536 confers right of appeal in respect of certain punishments imposed. Under cl. (4) of s. 537, it is provided that
“No officer of the District Police below the grade of Inspector can be punished departmentally, except by a Superintendent, a Deputy Inspector-General of Police, the Inspector-General of Police or Government.”
7. It further provides that
“If any District Magistrate considers that a Superintendent of Police has wrongly acquitted or otherwise dealt with such a Police officer in a departmental inquiry, he may, unless the Superintendent voluntarily revises his own order, report the case to the Inspector-General of Police for revision”.
8. Section 556 provides for appeals against the Inspector-General's orders of punishment of Inspectors to the Government. This section also makes provision for appeals against the orders of punishment passed by the Deputy Inspector-General of Police and Superintendent of Police. Under cl. (4) of this section the phrase “subject to the control of the Inspector-General of Police” is explained as intended to mean that the Inspector-General of Police, in the exercise of his inherent power and duty as Head of the Department, possesses the right of revising the departmental proceedings of a Superintendent of Police. Section 557 relates to mode of preferring an appeal. Under cl. (10) of that section it is, inter alia provided that
“…but nothing herein contained shall be deemed to debar Government from the exercise of any authority or control vested in them under the provisions of the Bombay District Police Act, or from issuing such special orders, as they may deem fit, restricting the exercise of the power of punishment in the case of a particular Police officer”.
9. Section 558 provides for petitions in revision and confers a right on officers who feel aggrieved by the decisions passed by an appellate authority on their appeal. In connection with the petitions for revision and appeals, under cls. (4), (5) and (6) of s. 558, it is provided that
“It is improper for a Superintendent of Police to revise his own proceedings after he has received an appeal…. If fresh facts necessitating the enhancement or reduction of punishment are brought to light while a case is under appeal, the Superintendent of Police should inform the appellate authority accordingly.”
10. For enhancing punishment on fresh evidence, it is provided that
“it will be necessary to hold fresh proceedings to give the defaulter the opportunity to defend himself.”
11. It is also provided that the procedure to be adopted in connection with fresh proceedings should be decided by the Deputy Inspector-General on the merits of each case. Under cl. (6), it is provided that
“it is, however, open to the punishing authority to revise his own or his predecessor's order of punishment when no appeal lies against that punishment, but not otherwise…”
12. The contention on behalf of the State Government is that it is clear on a reading of the provisions in s. 4 and sub-s. (1) of s. 25 that the State Government has been vested with powers to inflict, inter alia, punishments of dismissals of Police Officers from Government service. In connection with these powers, rules have not been framed at any time. The powers are not controlled except by and under the provisions of arts. 310 and 311 of the Constitution.
13. It is clear on a reading of cl. (c) of sub-s. (2) of s. 25 and the corresponding provision in s. 29 of the District Police Act that the rules relating to departmental enquiry and punishments all relate to the exercise of powers in that connection by Officers mentioned in sub-s. (2) of s. 25. Thus, these rules clearly relate to inquiries to be held by the Inspector-General, the Commissioner and the Deputy Inspector-General as also the District Superintendent and other Officers mentioned in sub-s. (2) of s. 25. These rules do not control in any manner the extremely wide and general power reserved to the State Government for making enquiry into misconduct of Police Officers and imposing punishments against them.
14. The language of s. 4 is clear and unambiguous. Obviously, under that section, the State Government is vested with power of superintendence over the Police Force throughout the State. Having regard to the clear language of the section, it would not be wrong to hold that as regards each and all the matters pertaining to the Police Force, the State Government has absolute powers to deal with them in the best interests of Police Force as it deems fit. Nothing has been pointed out from the contents of the Act to show that this general power of superintendence vested in the State Government was intended to be curtailed in any manner whatsoever. The contention that the power vested in the State Government under s. 4 appearing under Chapter II was not intended to overlap in connection with matters of discipline of the Police Force provided for under s. 25 appearing under Chap. III of the Act appears to be unwarranted. In fact, the heading of the Chap. II contains the phrase “…control of the Police Force”. Similar is the position in the heading of Chap. III. Chapter III does not purport to deal with the matter of the power of superintendence that is dealt with under Chap. II. There is nothing in s. 25 to indicate that the power of superintendence conferred under s. 4 on the State Government is in any manner curtailed by reason of the provisions in s. 25 for punishments of members of the subordinate ranks of the Police Force departmentally for neglect of duty and other misconduct. It appears to us that in connection with powers given under sub-s. (2) of s. 25 to various Officers to award punishments against members of subordinate ranks of Police Force, the power of superintendence vested in the State Government under s. 4 of the Act would always be available. Further, by the first part of s. 25, direct power which is not merely of superintendence is conferred on the State Government to award punishment against members of the subordinate ranks of the Police Force departmentally for neglect of duty and other misconduct. Thus, under s. 25, direct authority and power is created in favour of (i) the State Government and also (ii) the Officers mentioned particularly in sub-s. (2) of s. 25. The result of the above contents of ss. 4 and 25 is that in matters of departmental action taken by Officers authorised under sub-s. (2) of s. 25 for punishment of the members of the subordinate ranks, the State Government can at any stage intervene under the power of superintendence reserved to it under s. 4. In those very cases, if it finds it necessary, the State Government can directly for itself proceed to exercise punitive powers and after enquiry inflict necessary punishments. There is, therefore, no substance in the contention that there is nothing in the Act to confer jurisdiction on the State Government to order a further departmental enquiry for punishment of the members of subordinate ranks guilty of misconduct. This power is to be found in ss. 4 and 25. It is true that there is no direct provision in the Act providing for ordering of a further fresh enquiry for punishment of members of Police Force in respect of their misconduct. That, however, does not result into a position that there is no jurisdiction in the authorities mentioned in ss. 4 and 25 to order further fresh enquiry when the facts of a particular case warrant such directions. The question that requires to be answered in this connection is as to whether there is any provision in the Act and/or rules made thereunder to warrant a conclusion that further fresh enquiry cannot be held after a defaulting Police Officer has been exonerated in one or more departmental enquiries from the charges levelled against him. On behalf of the appellant it is not contended that there is such direct provision in the Act. The contention has been that it is principle of fairplay that requires that such a limitation on the powers should be assumed to exist. It is not contended that there are provisions in the Act corresponding to and/or like the provisions in s. 11 of the Code of Civil Procedure (res judicata) or s. 403 of the Criminal Procedure Code (autrefois acquit) or art. 20 of the Constitution. It is, therefore, clear that the appellant is not able to rely upon any statutory contents of the Act and/or rules made thereunder in support of his contention that the State Government was not entitled to order fresh enquiry as it did in this case.
15. In connection with what we have observed above, support can be derived from the decision of two Division Benches of this Court respectively in Gabrial Pedroo v. Dy. Commissioner of Police, Division South and Port, Bombay . 1959 Special Civil Application No. 361 of 1959, decided by Chainani, C.J and V.S Desai, J., on August 25, 1959 Unrep.. and the case of Arjunrao Baburao Ashtekar v. The State Of Bombay* . 1960 62 Bom. L.R 1038.. In the first of these cases, it was contended on behalf of the defaulting Police Officer that under s. 25 the power to punish can be exercised either by the State Government or any Officer authorised by sub-s. (2). Once such power to punish is exercised by any Officer, it was not open to the State Government to exercise the power again or to revise the order made by the Officer concerned. The Court negatived this contention and observed:
“…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”.
16. The Court further observed:
“…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…”.
17. The ratio of that decision appears to us to be that even in cases where a departmental action is taken by Officers authorised to exercise punitive powers under sub-s. (2) of s. 25, it is permissible for the State Government once again to order further enquiry for the purpose of punishing the defaulting Officers. The reason, according to the Division Bench, was that such power was contemplated by the contents of the first part of s. 25 and also by reason of the powers of superintendence created in favour of the State Government under s. 4.
18. In the second case, the contention on behalf of the defaulting Police Officer was that since the District Superintendent of Police had acquitted the Police Officer, there was no power in the State Government under the first part of s. 25 to make a finding that the Officer was guilty of the offence and impose on him the punishment of dismissal. In that case, six charges were levelled against the Officer concerned. He was exonerated in the departmental enquiry of the two last charges, being charges Nos. 5 and 6. The State Government, not having been satisfied with such exoneration from those charges, ordered further enquiry. The result of that enquiry was that even in respect of the last charge No. 6, the Officer concerned was ultimately found guilty. He was thereupon dismissed from service. The argument advanced was not accepted by the Division Bench. The Division Bench agreed with the ratio of the decision in the previous case and observed (p. 1042):
“…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”.
19. It is clear to us that there is no substance in the contention that the State Government was not entitled to make the order of further enquiry and direct that the proceedings be held for investigating into the misconduct of Police Officers concerned once again in respect of the incident that had taken place on September 6/7, 1949.
20. We have been shown certain reported decisions of different High Courts where in connection with further fresh enquiries in respect of charges whereof Police Officers were first exonerated the Courts came to the conclusion that on principles of justice, equity and good conscience, it was wrong in the absence of provision in the Service Rules in that connection to permit such further departmental enquiries. We find it unnecessary to go into details of those cases. The Courts came to that conclusion in spite of their noticing that there was no provision corresponding to s. 11 of the Code of Civil Procedure or s. 403 of the Code of Criminal Procedure or art. 20 of the Constitution in the relevant statutes. It is sufficient to state that having regard to the provisions in ss. 4 and 25 of the Act, we are unable to accept the ratios of the decisions in those cases as applicable to the facts of this case.
21. There is no substance in the contention that in the matter of the further enquiry ordered by the State Government, principles of fairplay have not been observed. The letter dated December 31, 1952, exh. 63, addressed by the Secretary to the Government, Home Department, to the District Magistrate Poona, in pursuance whereof the further fresh enquiry was held, has been referred to whilst reciting the facts leading to the institution of the suit. It is clear from the contents of that letter that the R.L.A had given an opinion as regards the report of the Enquiry Officer in the first enquiry observing that proper results had not been arrived at. It is this opinion of the R.L.A which had induced the Government to decide that a general departmental enquiry should be held afresh against all the Police Officers concerned. It is, in this connection, relevant to notice that the enquiry was ordered against all Police Officers concerned. The enquiry related to an extremely gross incident of a stranger having been brought in almost unconscious condition to the Cantonment Police Station in the night of September 6, 1949, and the same person having been found near Empress Garden in the jurisdiction of another Police Station in the morning of September 7, 1949. The person died as a result of cerebral haemorrhage consequent upon fracture of skull in the morning of September 7, 1949. Now, in a matter of such incident, obviously, it was permissible for the Government to decide that the offending Police Officers must be brought to book. The result of the previous enquiry proceedings was that no one was brought to book in connection with gross misconduct of which someone or the other was guilty in connection with the above incident. The Government directed that the enquiry should be entrusted to a senior Prant Officer of Poona District. But the decision of the Government to order further fresh enquiry having regard to the above facts cannot be held to be in violation of principles of fairplay. It appears to us that the contention that an Officer exonerated in a departmental enquiry cannot be once again charged with the same misconduct is entirely technical and not warranted by any of the statutory provisions in the Act and/or rules made thereunder.
22. The next contention made was that the present enquiry was held under procedure prescribed in Appendix II to the Bombay Civil Services Conduct, Discipline and Appeal Rules. Such departmental enquiry is wholly inapplicable to the enquiries to be held for punishment of defaulting Police Officers under the Bombay Police Act, 1951. The only appropriate procedure for departmental enquiries was contained in the rules made under the District Police Act and continued under the Bombay Police Act, 1951. The contention was that as admittedly the present enquiry was held under the procedure prescribed in Appendix II to the Bombay Civil Services Conduct, Discipline and Appeal Rules, it was contrary to the provisions of the Bombay Police Act, and was therefore illegal and vitiated. In the result, the punishment was liable to be quashed. In this connection, it requires to be stated that in the case of Shantaram v. Chudasama . 1953 56 Bom. L.R 350., the question that arose was that the first preliminary enquiry in connection with misdemeanour of the Police Officer concerned had been held by an Inspector of Police, whilst under the rules made under the Bombay Police Act, 1951, such preliminary enquiry was liable to be held by a Superintendent of Police. The subsequent formal enquiry was held by the Officers prescribed by the rules. Even so, on the mere ground that the preliminary enquiry was held by the Officer who was not prescribed for that purpose by the rules, the Court held that the whole enquiry was vitiated and issued a writ of prohibition to prevent further proceedings in that enquiry. The Court observed (p. 353):
“Now, it is well established that a tribunal though duly constituted may be acting without or in excess of jurisdiction by reason of the absence of some essential preliminary or non-compliance with a condition precedent. The holding of a departmental inquiry by a superintendent of police is a condition precedent, a fact which must exist before the Commissioner of Police can assume jurisdiction or authority for the purpose of passing the final order of dismissal…. This is not, therefore, a case merely of any illegality or error in conducting the departmental inquiry, but a case of acting without or in excess of jurisdiction. It is also clear that in any view of the matter, here is a case in which there is substantial error apparent on the face of the record and this is regarded as an error of jurisdiction…
23. On behalf of the appellant, reliance was placed on the above decision and provisions in ss. 545 and 558 in the Police Manual being rules for enquiry prescribed under the District Police Act. Under s. 545, where the defaulting officer is of the rank of Sub-Inspector, the Superintendent himself is the authority directed to hold enquiry as far as possible. Under s. 558, there is a right of petition in revision in favour of all Officers who feel aggrieved by decisions passed by appellate authority on their appeals to submit to the Inspector-General of Police a petition for revision. The contention was that the plaintiff who was sub-inspector was entitled to have the enquiry proceeding held by the Superintendent himself. The Prant Officer was not the prescribed statutory authority to hold the enquiry. The enquiry held by Caldeira as Prant Officer was contrary to the statutory provisions and without jurisdiction. By reason of Caldeira having held the enquiry proceedings under the Bombay Civil Services Conduct, Discipline and Appeal Rules, the plaintiff lost the benefit of the right of revision and other rights which might exist in his favour under the rules made under the District Police Act. It is contended that for this reason the plaintiff is entitled to succeed in this appeal and to a finding that the order of dismissal was illegal and void.
24. It is to be noticed in this connection that it is not contended by Mr. Abhyankar for the State Government that the enquiry has been held in this case under the provisions of the rules made under the District Police Act. Even so, it appears to us that there is no substance in this contention. The reason for this is that the rules made under the District Police Act have been made under the provisions in s. 29 of that act which are in substance reproduced in and correspond with the provisions in sub-s. (2) of s. 25. It is clear on a reading of sub-s. (3) of s. 29 of the District Police Act and cl. (c) of sub-s. (2) of s. 25 of the. Bombay Police Act, 1951, that the statutory rules which have been framed in connection with exercise of punitive powers for punishment of the defaulting members of the Police Force have all been made in connection with the exercise of such powers by Officers mentioned in sub-s. (2) of s. 25 of the 1951 Act and sub-s. (3) of s. 29 of the District Police Act. In other words, the rules which have been enacted relate to departmental enquiries held for exercising punitive powers by the Inspector-General, the Commissioner, the Deputy Inspector-General and other subordinate Officers prescribed by the above two sub-sections. That is the result in the case of the 1951 Act of the provisions in cl. (c) of sub-s. (2) of s. 25 and the last part of sub-s. (3) of s. 29 of the District Police Act. In this last sub-section, the provision is: “The exercise of any power conferred by this sub-section shall be subject always to such rules and orders as may be made by the State Government in that behalf”. It is clear, therefore, that the rules relate to the enquiries by the Officers mentioned in sub-s. (3) of s. 29 of the District Police Act. Similar is the effect of the provisions in cl. (c) of sub-s. (2) of s. 25 of the 1951 Act. It appears to us that as regards the exercise of punitive powers by the State Government as the authority mentioned in the first part of sub-s. (1) of s. 25, rules, statutory or otherwise, have not been enacted. Even so, to make the whole enquiry fair, the State Government directed that the instructions regarding the holding of departmental enquiries printed in Appendix II to the Bombay Civil Services Conduct, Discipline and Appeal Rules should be observed. In this very connection the lower Court has made a finding that in fact every protection that the plaintiff was entitled to under the rules framed under the District Police Act has been made available to the plaintiff because of observance of the above rules in the enquiry proceedings. The plaintiff has been afforded clear opportunity to show cause. The plaintiff was furnished with charge-sheet, statement of allegations against him, concise statements of the evidence of witnesses who were going to be produced in the enquiry and a list of such witnesses. The plaintiff was given opportunity to cross-examine all witnesses. He was further allowed to put forward in defence whatever evidence he desired. Suffice it to state that having regard to the facts as exist, it was not possible for the plaintiff to contend that he had not been afforded a fair opportunity to show cause in the matter of the enquiry held against him. The plaintiff's contention was only technical. As there is no prescribed procedure binding on the State Government in connection with punitive powers exercised by the State Government under the first part of s. 25 of the Act, we are unable to accept the contention made as above on behalf of the appellant.
25. The next contention made on behalf of the appellant was that in spite of notice to produce that was tendered on it, the State Government failed to produce at the hearing of the suit in the lower Court the whole file of papers relating to the first departmental enquiry. For this default, an adverse inference should be drawn against the State Government to the effect that the first enquiry was properly held and that there was no reason to hold further enquiry.
26. We have not been able to appreciate this contention. The plaintiff was aware of all that had happened in the first enquiry. If in connection with any of the issues raised before the lower Court, the plaintiff and/or his advocates needed any particular document, the same could have been at appropriate time called for and tendered in evidence. In default of the defendant (State Government) producing such a document, the plaintiff could have made appropriate complaint by written application to the trial Court. We have no doubt that the trial Court would have in that connection passed appropriate orders. We do not also appreciate the contention that the production of such document would have supported the plaintiff's case that there was no necessity in this case to hold further enquiry. In that connection, what we have already observed above can usefully be read over. It is not necessary to reproduce all that once again here. It is sufficient to state that the incident of September 6/7, 1949, was such that the Government was entitled to take the view that all defaulting Officers should be brought to book.
27. We have dealt with all the contentions made on behalf of the appellant. On behalf of the State Government, it is contended that the decree for Rs. 1,701-5-0 and interest thereon passed by the learned Judge below relates to the plaintiff's claim which was barred by law of limitation. The lower Court was, therefore, in error in granting that decree. The relevant facts in that connection are as follows:—
Admittedly, the sum of Rs. 1,701-5-0 relates to a part of arrears of salary which became due to the plaintiff whilst he was under suspension between October 26, 1949, and January 29, 1951. The plaintiff was reinstated in service on the last date and continued to receive salary until he was dismissed by the order dated January 11, 1954. Thus, the above amount became due to the plaintiff in any event prior to January 29, 1951. The plaintiff demanded the above amount by his letter dated May 2, 1954, exh. 37, i.e a little before 4 months expired from the date of the order of dismissal. The plaintiff's demand was rejected by the reply dated May 15, 1954, exh. 39. This suit was filed on January 9, 1957. The contention of the State Government is that to the above claim of the plaintiff the provisions in art. 102 in Schedule I to the Indian Limitation Act were applicable. Article 102 provides:—
Description of suit. Period of Limitation Time from which Period begins to run. 102 For wages not otherwise expressly provided for by this Schedule. Three Years. When the wages accrue due.
28. The suit for the above arrears according to the State Government was liable to be filed in any event within 3 years from January 29, 1951, i.e on or before January 29, 1954. The suit was filed about 3 years after the period of limitation expired.
29. The learned Judge below made a finding that to this claim of the plaintiff, art. 120 in Schedule I to the Indian Limitation Act applied. He, therefore, granted decree in favour of the plaintiff. Now, the learned Judge's finding is contrary to the view taken by the Supreme Court in the case of M.L Vaikunthe v. The State of Mysore . [1962] 1 S.C.J 134.. The Supreme Court has clearly made a finding in that case that to a claim by an Officer for arrears of salary, allowances, etc., art. 102 of the Limitation Act applies.
30. Following that decision, we are bound to make a finding in this case that the plaintiff's claim for the above sum of Rs. 1,701-5-0 was barred by the law of limitation at the date of the institution of the suit. That claim was liable to be rejected in toto.
31. The result is that the appeal of the plaintiff, being First Appeal No. 244 of 1959, is dismissed with costs. The State Government's appeal, being First Appeal No. 229 of 1959, is allowed without any order as to costs. The decree of the lower Court dismissing the plaintiff's suit is accordingly confirmed. The decree of the lower Court in favour of the plaintiff in the sum of Rs. 1,701-5-0 and interest thereon is reversed and set aside. The suit of the plaintiff is wholly dismissed.
32. Orders accordingly.
Alert