Poonamram v. State Of Rajasthan

1. This is a writ application by Poonamram an ex head constable against the State by which the order of the Inspector General of Police dated the 21st May, 1955, discharging him from service from the 1st June, 1955, has been challenged as being beyond jurisdiction.

2. The material facts out of which this application arises may be shortly stated as follows. The petitioner Poonamram appears to have been appointed as a Head Constable in the former State of Sirohi, some time in 1935, though the order of his original appointment has not been produced before us. Thereafter as a result of the integration of the State of Sirohi with the State of Rajasthan, he was also confirmed as a Head Constable by the Deputy Inspector General of Police.

He was posted at the Saroopganj police outpost, District Sirohi, at the relevant time. On the 14th August, 1954. the Sub-Inspector Sultan Khan happened to visit Saroopganj outpost at about 5 A. M. The Sub-Inspector stayed at Saroopganj till 9 A. M. but the petitioner was found lying in bed until that time. Thereafter the Sub-Inspector left the outpost for some work and then returned to it at 2-30 P, M. The petitioner was still found absent from the outpost, and it appeared from an entry in the general diary that he had left for patrolling duty. The Sub-Inspector suspected this entry to be false, and, therefore, he deputed a constable to find out from the house of the petitioner whether he was there. It was found that the petitioner was at his house lying in bed with a bottle of liquor by his side.

Consequently on the 25th August, 1954, certain charges were framed against the petitioner and a departmental enquiry was ordered to be made. The enquiry was made by the Superintendent of Police, Sirohi. He reported that the petitioner had made a false entry in the Roznamcha for the 14-8-1954, regarding his proceeding on patrol duty and he also came to the conclusion that there was suspicion against the petitioner as respects the second charge, namely, that he was drinking liquor during working hours on 14-8-1954.

The, Superintendent, therefore, having reported the matter as above, the Deputy Inspector General of Police examined the entire case and by his order dated the 22nd/23rd October, 1954 reduced the petitioner to the rank of a constable for a period of two years from the 22-10-1954. The petitioner then preferred an appeal from the aforesaid order to the Inspector General of Police, Rajasthan.

The Inspector General seemed to he of the view that the punishment awarded by the Deputy Inspector General of Police was inadequate, and, therefore, he ordered a show-cause notice to go to the petitioner why he should not be discharged from the service. The petitioner filed a representation in the matter on the 5-5-1955, but this was not considered satisfactory.

Consequently, by his order dated 21-5-1955, the Inspector General of Police enhanced the punishment awarded to the petitioner by the Deputy Inspector General of Police and ordered that he should be discharged from service with effect from 1-6-1955. Thereafter, the petitioner presented an appeal to the Government of Rajasthan on 10-1-

1956. This appeal was dismissed as barred by time by an order issued under the signature of the Home Secretary dated 18-5-1957.

As the appellant in the aforesaid order was referred to as an ex-head-constable of Tonk, and there were certain other accidental errors therein, a further order was issued sometime in November, 1957, wherein the discrepancies were corrected. The petitioner then filed the present petition in this court on 5-3-1958, and his prayer is that the order passed by the Inspector General of Police should be quashed as being beyond his jurisdiction. The State has resisted the petition.

3. The main contention raised by the petitioner in this writ application is that the order of the Inspector General of Police dated 21-5-1955, passed on the petitioner's appeal to the said officer against the order of the Deputy Inspector General of Police was entirely without authority and jurisdiction inasmuch as it enhanced the punishment awarded to the petitioner by the Deputy Inspector General of Police, and, was, therefore, illegal.

4. A similar question arose before a Division Bench of this Court in Daulat Singh v. State of Rajasthan, ILR (1958) 8 Raj 953: (AIR 1958 Raj 284), The petitioner in that case was a Stenographer to the Superintendent of Police, Nagpur. The case against him was that although he had left his head-quarters after obtaining the permission of the Superintendent of Police on 16-11-1952, he absented himself from duty without leave or permission from the 17th November, 1952, and did not resume duty till the 23rd December, 1952, and that during this period of absence, he was attending law classes and was not at all ill as reported by him in his leave applications submitted later.

It may also be mentioned in this connection that he had submitted certain leave applications but these were not made in time. The Deputy Inspector General of Police after a departmental enquiry held that the aforesaid charges were proved against the petitioner and consequently ordered that his increment be stopped for a year.

The matter, thereafter, came to the notice of the Inspector General of Police and a notice of enhancement of punishment was issued by the latter, and eventually an order removing the petitioner from service came to be passed on 16-10-1953. The petitioner then filed a writ application in this Court sometime in May, 1955.

It was contended on behalf of the petitioner that the Inspector General of Police had no power to enhance the punishment which had been awarded by the Deputy Inspector General of Police. Reliance was placed on behalf of the State on Rule 100 of the Rajasthan Police Regulations, 1948, but it was held that that rule was only applicable to the members of the police force and was not at all applicable to the ministerial staff.

On that view, the application of Rule 100 was excluded, and it was held that the Inspector General of Police had no power to enhance the punishment, as such power was not to be found in or had not been provided for in the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1950, (hereinafter referred to as the Rules of 1950) which undoubtedly applied to the petitioner's case.

5. It is important to mention in this connection what the learned Judges observed about the Rajasthan Police Regulations, 1948. We would prefer to quote the relevant observations in the words of the learned Judges themselves:

"It was also argued on behalf of the applicant that the Rajasthan Police Regulations, 1948, purported to have been issued by the Chief Secretary to the Government of United State of Rajasthan and not by the Rajpramukh and as such they are invalid. The State was unable to show that these regulations were approved by the Rajpramukh. So far as the applicant is concerned, even if it be assumed that Rule 100 of the Police Regulations was applicable to him, these rules were completely superseded by the Rajasthan Civil Services (Classification, Control and Appeal) Rules 1950, so far as ministerial officers are concerned. It is not disputed that these rules were framed under Article 309 of the Constitution. Under these rules, as they stood on the date on which the notice of enhancement was issued in this case by the Inspector General of Police, he had no power to enhance the punishment imposed by any subordinate authority.''

6. It seems obvious to us that as the learned-Judges were of the opinion that Rule 100 of the Rajasthan Police Regulations occurred in Chapter VI (which deals mainly with the members of the police force) that rule was applicable to the members of the police force only and was not applicable to the ministerial staff, & on that view of the matter, it was not considered necessary to pursue the matter further inasmuch as the learned Judges were satisfied that once this rule was held out of the way of the petitioner, there was no other power residing in the Inspector General of Police under the rules of 1950 which would or could authorise the Inspector General of Police to enhance the punishment imposed by any authority subordinate to him.

7. It must be pointed out at this place that the present case is somewhat different because the petitioner here undoubtedly is a member of the police force. The question which at once arises therefore is whether Rule 100 of the Rajasthan Police Regulations governs the case of the petitioner. This rule is in these terms:

"100. The Inspector General or the Deputy Inspector General may call for any proceeding, even where no appeal lies, and pass such orders as may seem it, provided that no order under this rule shall be made to the prejudice of any person unless he has had an opportunity of showing cause against the proposed order. If he so desires, he shall be granted a personal hearing and this fact shall be recorded in the proceeding."

If this rule is properly applicable to the case of the petitioner, then we have no doubt that he has no case. The question of the applicability of the aforesaid rule to the case of the petitioner is, however, not tree from serious difficulties. It has to be borne in mind that these regulations were issued by the Chief Secretary to the Government of United State of Rajasthan in September 1949.

In Daulat Singh's case, ILR (1958) 8 Raj 923, referred to above, the State was unable to show whether these regulations were approved by the Rajpramukh who was the competent legislative authority in the State at that time. The position in this respect has not been advanced so far as the present case is concerned as we have still not been informed if the Rajpramukh had given his sanction to these Regulations.

In these circumstances we are unable to hold that they have any statutory force. It is also pertinent to mention in this connection that the Indian Police Act, 1861 (No. V of 1861) was brought into force in Rajasthan for the first time on 19-7-1950, by a notification dated 10-7-1950. This notification happened to be issued under Section 4 of the Rajasthan Adaptation of Central Laws Ordinance (No. V of 1950), and the question arose in State v. Bahulal, ILR (19561 6 Raj 636: (AIR 1957 Raj 28), whether the said Act was validly brought into force in Rajasthan.

It was held by a bench (to which one of us was a party) that the Act was properly brought into force by the said notification though there was a mistake in the notification inasmuch as it should have been issued under Section 46 of the Police Act of 1861 and not under Section 4 of the Ordinance (No. IV) of 1950, which stood repealed by the Constitution.

It was observed that as the State Government had the power to bring the Police Act of 1861 into force by a mere notification and as a notification to that effect was issued on the 19th July, 1950, there was only a technical defect when the notification said that it was issued in pursuance of Section 4 of the Rajasthan Adaptation of Central Laws Ordinance (No. IV) of 1950 instead of Section 46 of the Police Act of 1861.

We respectfully agree with the aforesaid view and have no hesitation in saying that the Police Act of 1861 was validly enforced in Rajasthan for the first time on the 19th July, 1950, when it was published in the Rajasthan State Gazette. It would thus appear that the Rajasthan Police Regulations 1948 were issued before the Police Act of 1861 received operation in this State.

The conclusion seems to us, therefore; almost inevitable that the said regulations cannot be said to have been issued under the Act of 1861 as adapted to Rajasthan, and that even otherwise they tack statutory force. These regulations under the circumstances can, at the best, be treated as administrative rules for the guidance of the officers concerned and no more, and cannot prevail over the Rules of 1950 in so far as they may be found inconsistent with the latter.

It must be remembered that the Rules of 1950 which were indisputably issued by the Rajpramukh, who was the competent legislative authority at the time, in exercise of the power conferred by Article 309 of the Constitution must prevail and receive their due effect and force. It is also not disputed that these rules as they stood at the relevant time did not give any power to the Inspector General of Police or for that matter any similar appellate authority to enhance the punishment already awarded to a guilty official by a competent subordinate authority.

We should also like to point out that as a matter of principle an appellate authority in an appeal by an aggrieved party may allow the latter's appeal partly or wholly or may dismiss it but it cannot give him higher punishment, and thereby make his position worse than it would be if he had not appealed unless it has been vested with what we may conveniently call revisional jurisdiction by resort whereto the power to award enhanced punishment to the person in default is vouchsafed to it by law.

Such power the Inspector General did not have at the time he passed the order which has been impugned in this case. That being so, the conclusion is irresistible that the order passed by the Inspector General of Police enhancing the punishment awarded to the petitioner by the Deputy Inspector General of Police in this case was entirely without jurisdiction and cannot be sustained in law.

8. The learned Deputy Government Advocate next raised the contention that, even if we came to the conclusion above-mentioned, we should not interfere in this case because the petitioner's ap-peal to the Government was dismissed as time-barred, and he has come to this Court with his present writ application after considerable delay against the order of the Inspector General of Police, which was passed on the 21st May, 1955.

Our attention has been invited in this connection to the order of the State Government wherein it has been found that the petitioner's appeal to the Government against the order of the Inspector General of Police was barred by time. It was stated in this connection that the explanation furnished by the petitioner for delay in the filing of the appeal namely that he was ill and so unable to act was far from satisfactory and that even according to the certificate which the petitioner obtained from the Gram Panchayat and according to which the petitioner was ill upto December, 1955, the further delay of some ten days in January, 1956, remained unexplained and, therefore, the petitioner's appeal was thrown out as not being within time.

We have carefully considered the contention raised by the learned Deputy Government Advocate and have come to the conclusion that it is bereft of any real force.

9. At the very outset, we may point out that this contention has not been raised by the State in its reply filed in this Court.

10. Apart from that altogether, we are inclined to think that this Court where its writ jurisdiction in the nature of certiorari is invoked, cannot but make a distinction between cases arising out of an order which has been passed by a subordinate Court or tribunal entirely without jurisdiction, and cases where there is no such inherent lack of jurisdiction but which are merely instances of an irregular exercise of jurisdiction.

The former class of cases stand on a clearly different footing because the principle is too-well established to admit of any doubt or dispute that where a court or a tribunal passes an order which is entirely beyond its inherent jurisdiction to pass, then such an order is a nullity and has no effect in law. See in this connection Firm Gulzarimal v. Firm Rameshchandra, Second Appeal No. 76 of 1954, decided by one of us on 17-2-1959 : (AIR 1959 Raj 162).

11. We may also refer in this connection to State Of U.P v. Mohammad Nooh ., AIR 1958 SC 86, in which their Lordships of the Supreme Court made the following observations which, with great respect, apply with full force to a case like the present :

"On the authorities referred to above at appears to us that there may conceivably be cases ........

where the error, irregularity or illegality touching jurisdiction or procedure committed by an inferior court or tribunal of first instance is so patent and loudly obtrusive that it leaves on its decision an indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision. If an inferior court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court's sense of fair play the superior court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the Court or tribunal of first instance, even if an appeal to another inferior court or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what ex facie was a nullity for reasons aforementioned. This would be so all the more if the tribunals holding the original trial and the tribunals hearing the appeal or revision were merely departmental tribunals composed of persons belonging to the departmental hierarchy without adequate legal training and background and whose glaring lapses occasionally come to our notice. The superior court will ordinarily decline to interfere by issuing certiorari and all we say is that in a proper case of the kind mentioned above it has the power to do so and may and should exercise it. We say no more than that."

(The underlining here ' ' is ours). Applying the principles propounded by their Lordships of the Supreme Court in the aforementioned case, what we find in this case is that the order passed by the Inspector General of Police enhancing the punishment of the petitioner in an appeal by the latter was an order which was entirely without jurisdiction.

Such an order, therefore, was a nullity and must be held to be inoperative. It is true that the petitioner went in appeal against that order to the State Government, which appeal was filed on the 10th January, 1956 -- the usual period of filing an appeal being three months only. This appeal was thrown out as barred by time.

The petitioner's case in this connection was that he was ill right up to December 1955 and was not able to move about, and in support of this submission he appears to have filed a certificate from the Gram Panchayat of the village in which he lived. This reason was not disbelieved though it was said that it was not quite satisfactory, and it was further held that the further delay of ten days in January, 1956, (the appeal having been filed on the 10th January, 1956) had remained unexplained, and therefore, it was not considered proper to allow the petitioner time for filing an appeal as late as the 10th January, 1956.

As we have already pointed out, this order dated the 18th May, 1957, contained certain inaccuracies, as, for example Poonam Ram petitioner was described therein as ex head-constable of Tonk District whereas he was actually serving at Saroopganj in Sirohi District at the relevant time. A further order was, therefore, issued on the 6th November, 1957, in which the necessary corrections had been made.

The present writ application was filed in this Court on the 25th March, 1958. Having regard to all the circumstances of the case, we are disposed to hold the view that the delay in this case is not such that we should refuse to interfere with the order of the Inspector General of Police dated the 21st May, 1955, by which he discharged the petitioner from service.

It may also be pointed out in this connection that the appeal of the petitioner to the Government against the order of the Inspector General of Police remained pending with the Government for about a year and a half, and the last order in that connection came to be passed as late as the 6th November, 1957, although the appeal had been filed by the petitioner on the 10th January, 1956.

We should also like to emphasize in this connection, even at the risk of some repetition, that mere delay of the kind we find in this case in attacking the order of the Inspector General of Police or the circumstance that the State Government had dismissed the petitioner's appeal as barred by time in the circumstances referred to above would not be sufficient ground for us to refuse to interfere in the exercise of our certiorari jurisdiction because the order which is assailed before us was an order which was passed by the Inspector General of Police entirely without any statutory authority, and which was, therefore, patently illegal, so that appeal or no appeal, such an order suffered from an inherent infirmity and was incapable of being supported or sustained on the general principles of law relating to appeals and in the absence of any special provision to the contrary. We hold accordingly.

12. For the reasons mentioned above, we allow this application, set aside the order of the Inspector General of Police dated the 21st May, 1955, and hold that this order was passed without valid authority or jurisdiction and was therefore illegal and of no effect. The consequence of our order cannot but be that the orders of the State Government dated the 18th May, 1957, and the 6th November, 1957, should also be set aside and that the order of the Deputy Inspector General of Police dated the 22nd October, 1954, shall stand intact and be given effect to.

As to costs, we order that as the petitioner preferred his appeal to the State Government after a good deal of delay, both parties shall bear their own costs in this Court.