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Judgment
(1) This writ petition calls in question an order passed by the Deputy Inspector General of Police, Jammu Range, as early as 12111957, a copy of
the order is Annexure 'E' to the petition. The circumstances in which the impugned order came to be passed, and the facts which necessitated the
present petition are summarised as under :
The petitioner was serving in the Police Department as an officiating SubInspector in the year 1957. In the month of May 1957 he was posted as
officer incharge Police Post, Satwari. While incharge of the said Police Post, the petitioner received a first information report regarding an offence
under Section 457 of the R. P. C In the course of the investigation, which ensued, the petitioner proceeded to village Ghaur in Tehsil Akhnoor on 4
61957 to conduct a search of the house of one, Gogi Sweeper, a resident of the said village. He conducted the search but no part of the property,
alleged to be stolen in the case, was recovered. In the course of the search' however, the petitioner recovered one unlicensed muzzle loading
country made gun, one dagger on which words Us and trust amber 1944 were engraved, a canvass cover of the dagger, one OG mosquito net,
one O. G Blouse on which the name of one Sepol Kapal Dev was written and Government Currency Notes of the value of R?. 14C/. These
articles, it was later alleged, were taken possession of by the petitioner, and brought to the Police Camp, but were returned to Gogi on the
following day. Some time later the petitioner made a report against one, Sardha Ram constable No 641 alleging that the said constable was guilty
of misconduct inasmuch he had not made a true statement of facts as a prosecution witness in some other criminal case, which the petitioner had
investigated, In the course of the proceedings thus initiated the constable made a counter complaint against the petitioner to one, Shri Fatch Hussan
Shah, the then( Superintendent of Police. Jammu, by bringing to his notice that the articles recovered by the petitioner from the house of Gogi in the
course of his house search while investigating FIR No 73/57 were returned to him by the petitioner on the following day. On having taken notice of
these facts the Superintendent of Police aforesaid issued a direction to the SubInspector Police holding charge of the Police Station, Akhnoor, to
proceed to village Ghaur and again search the house of Gogi sweeper. In the search conducted by the Station House Officer, Police Station,
Akhnoor, all the articles alleged to have been earlier recovered by the petitioner excepting the currency notes were recovered. On receipt of a
report from the S H. O, Police Station, Akhnoor, the. Superintendent of Police Jammu initiated formal Proceedings against the petitioner and in the
course of these proceedings examined a number of witnesses some of whom made statements implicating the petitioner. After holding a preliminary
enquiry the superintendent of Police, Jammu1 framed a chargesheet against the petitioner on the basis of the evidence recorded by him in the
course of the preliminary enquiry. An explanation to the chargesheet was also invited by the Superintendent of Police from the petitionersThe
petitioner submitted one in which he stated that the articles in question not being in any way connected with the investigation of F. I R. No. 73/57 it
was not legally permissible to seize the same. He relied upon an extract from the Madras Criminal Intelligence Gazette dated 18191953 which had
earlier been circulated by the D I G., Jammu, under his endorsement No. 3979/86JGB dated 13111953 It appears that the Superintendent of
Police, Jammu, considering himself not competent to impose an appropriate punishment on the petitioner submitted the case to the Deputy
Inspector General of Police with a recommendation that the petitioner be reverted to the rank of a head constable. The Deputy Inspector General
of Police, Jammu, after receipt of the papers from the Superintendent of Police, Jammu, sent for two more witnesses namely Gogi sweeper and
Anant Ram Lambardar. On the date these witnesses attended the office of the D. I. G the D. 1. G. was out of station. Their statement, therefore,
could not be recorded. The witnesses, however, were directed to file affidavits duly attested by a Magistrate. Later it appears that the D. I. G. on
a consideration of the circumstances of the case found the petitioner guilty of misconduct in not having seized the unlicensed suzzle loading country
made gun. He consequently reverted the petitioner to his substantive post of Headconstable and further reduced the petitioner's pay by Rs. 8/ P.
M. (from Rs. 84/ to Rs 76/ for a period of one year). With this punishment the petitioner was reinstated with effect from 8111957 and the period
of suspension was treated as leave of whatever kind due to him. A formal order passed by the D I G imposing this punishment on the petitioner is
Annexure 'P' to this petition.
(2) This order left the petitioner aggrieved. He, therefore, filed a review petition before the D I. G. on the ground that two punishments could not
have been awarded to him for one offence. The contention prevailed with the D. I G. who accepted the review petition and withdrew the
punishment of reversion to the substantive rank of a headconstable. The punishment regarding reduction in pay was however maintained.
Subsequently on being informed that at the relevant time the petitioner was getting a salary of Rs. 95/ the D. I G. modified his order and held that
the petitioner's pay would stand reduced from Rs 95/to Rs,84/. This order is No. 1197 of 1958 dated 3071958.
(3) Even after the withdrawal of punishment of reduction in rank to the post of a Headconstable the petitioner did not feel satisfied. He challenged
the legality of the order passed by the D. I. G. before the I. G P in appeal. The appeal however, did not succeed. A revision was thereafter
brought before the Government against the order of the D. I. G. The revision was filed before the Government un 29th September, 1961. The
Government did not choose to dispose of the revision application, for more than 9 years which necessitated the filing of a writ petition in this court
seeking a direction to the Government to dispose of the revision, In writ petition the Advocate General appeared on behalf of the State and gave
an undertaking that the revision would be disposed of by the Government within one month from the date of the order. The Government showed
scanty regard to this undertaking of the Advocate General and did not dispose of the revision within the time prescribed. The disposal came only
after about 7 months from the date of the undertaking.
(4) It is true that the Government has multifarious duties to perform but nevertheless a delay of about 10 years in the disposal of an ordinary
revision application is some thing which is highly disappointing to a subject particularly when Rule 52 of the Jammu and Kashmir Civil Services
(Classification. Control and Appeal) Rules provides that a revision shall be disposed of within a period of three months The Government being
itself the rule making authority had. I think, a greater responsibility to adhere to the rule than any other authority subordinate to it.
(5) The disposal of the revision application was one of dismissal. The contentions raised by the petitioner in the revision application were repelled
by a sweeping remark which runs thus :
Instead he has tried to take shelter under legal and constitutional niceties contending that the procedure for awarding punishment had not been
meticulously observed. It will appear that the petitioner has raised certain pleas for the first time and at the face of it these seem to be superfluous.
(6) I will deal with these observations made in the order of the Government dismissing the revision application a little later. May it suffice to say
here that this is the order which has been challenged by the petitioner in this petition.
The grounds taken in the petition precisely are as follows :
(a) That the reduction in the petitioner's pay amounts to his reduction in rank ;
(b) That the provisions of Section 126 of the State Constitution not having been complied with the order cannot be sustained 5
(c) That the penalty in question being a major penalty could not have been imposed by the DIG, who was not the appointing authority of the
petitioner ;
(d) That no enquiry could be initiated against the petitioner without the permission of the District Magistrate ; and
(e) That the order impugned does not conform to the provisions of the Service Rules.
(7) In the objections field on behalf of the respondents and the counter affidavit of Shri Mohammad Amin, Additional secretary to Govt. Home
Department, it has been stated that the case against the petitioner was fully proved ; that the order impugned in the petition was quite in conformity
with the Rules and Regulations ; that the sanction of the District Magistrate was not necessary ; that the petitioner's case was fully considered by
the Government after applying their mind to the contentions raised in the revision application ; that the Police Rules have been fully complied with ;
that the petitioner having retired from service could not maintain the writ petition and that the petition could not succeed as it involved disputed
questions of fact.
(8) This precisely is the state of pleadings which call for adjudication as to whether the petitioner is entitled to any relief from this court.
(9) I will take up each ground of attak and discuss it in the light of the rules and the caselaw,
(10) The first question which arises for consideration is whether an order bringing about a reduction in the pay of the petitioner can be said to be an
order resulting in a reduction in rank. This question however, stands replied by the Supreme Court in State of Punjab V Sh. Kishan Dass reported
as Services Law Reporter Vol 6, 1971 page 174. In that case a constable of the Police Department was proceeded against in accordance with the
procedure laid down in the Punjab Police Rules, 1934, After the conclusion of the enquiry an order forfeiting his entire service with permanent
affect was passed bringing his salary to Rs 45/ per month which was the salary payable to a constable at the starting point of his service. Feeling
aggrieved of this action the constable filed a suit in the court of the subordinate Judge on the ground that the order amounted to his reduction in
rank and as no show cause notice against the proposed action was served on him before the passing of the order, the provisions of Article 311 (2)
of the Constitution of India stood violated. The trial court accepted the contention and decreed the suit. The State of Punjab filed an appeal before
the District Judge which failed. The second appeal before the High Court was summarily rejected. The matter went to the Supreme Court by
special leave. The Supreme Court allowed the appeal, set aside the decree and dismissed the suit of the plaintiff holding that reduction in rank in
Article 311 (2) of the Constitution of India meant reduction from a higher to a lower rank or post when imposed as a penalty. An order forfeiting
the past service which has earned a Government servant, increments in the post or rank he holds, however adverse, it is to him affecting the
seniority within the rank to which he belongs or his future chance of promotion does not attract Article 311 (2) of the Constitution of India. The
Supreme Court held that the remedy is confined to the rules of service governing the post held by the Government Servant. In this case the
Supreme Court reviewed almost all the cases right from Parshotam Lal Dhingra's case onwards and held that the reduction in pay in the same rank
does not amount to a reduction in rank. Concluding the discussion in para 13 of the judgment Shelat J who spoke for the court observed as under :
The aforesaid analysis of the decisions leads us to the conclusion that the expression ""reduction in rank'' in Article 311(2) has to be construed
according to the wellestablished meaning it has acquired, as in the case of the other two expressions, namely 'dismissal' and 'removal' in that article,
under the various service rules and the provisions in that regard in the Constitution Acts of 1915 and 1935. The expression ""reduction in rank"" in
the article, therefore, means reduction from a higher to a lower rank or post whee imposed as a penalty. Therefore, an order forfeiting the past
service which has earned a Government servant increments in the post or rank he holds, however adverse it is to him, affecting his seniority within
the rank to which he belongs or his future chance or promotion, does not attract the article. His remedy, therefore, is confined to the rules of
service governing his post. In our view neither Parshotam Lal Dhingra's case (2) nor Rupnarain Singh's case (1) assists the respondent as the first
does not lay down what he contended and the second was not correctly decided"".
(11) In view of this judgment of the Supreme Court it is not possible to hold that reduction in pay of the petitioner by Rs. 8/ per month for a period
of one year could in any case be said to have amounted to the petitioner's reduction in rankThe petitioner who argued major portion of his case
personally relied upon a judgment of the Orissa High Court in Roopnarian Vs. State of Orissa, reported as AIR 1959 Orissa, 165. No drubt the
contention of the petitioner finds support from the aforesaid judgment, but the Supreme Court in State of Punjab Vs Kishan Dass (Supra) has
clearly held that Roopnarian's case was not correctly decided by the High Court of Orissa. There is no support available therefore for the
contention of the petitioner that the order impugned in the petition amounts to an order reducing him in rank so as to be hit by the provisions of
Section 126 of the State Constitution. The reply to the first question, therefore, goes against the petitioner and it is held that the order impugned in
the petition does not amount to a reduction in rank within the meaning of Section 126 of the State Constitution.
(12) Consequently the contention that the nonobservance of the provisions of Section 126 of the State Constitution rendered the impugned order
invalid and the contention that the penalty in question could have been imposed only by the IGP who was the appointing authority and not by the
DIG also fails.
(13) It has then to be judged whether the order impugned can be sustained on the touchstone of the Service Rules. Rule 349 of the Police Rules of
1960 reads as under :
(1) Whenever a Superintendent of Police received a complaint against a police officer that under colour of his duties he has committed an offence,
as defined in the Ranbir Penal Code, the substance of the complaint shall be reported immediately to the District Magistrate, who will decide
whether the investigation of the complaint shall be conducted by a police officer or by a Magistrate. If he decides that the investigation or a trial or
an inquiry under the Criminal Procedure Code should be held by a Magistrate, he shall proceed according to the instructions laid down in the Rules
and orders (Criminal) for the guidance of Courts Subordinate to the High Court. These instructions are quoted in Appendix XII.
(2) When the District Magistrate decides that the matter shall be disposed of departmentally the procedure prescribed in these rules for the holding
of departmental enquiries shall be followed.
(3) An inquiry shall be made in every case in which the conduct of a police officer is censured by a court (vide Appendix XIII) in all such cases a
copy of the judgment shall be sent to the District Magistrate who shall decide whether an enquiry is to be made departmentally or by a Magistrate.
When such inquiry indicates the commission of an offence as defined in the Ranbir Penal Code, the procedure laid down in subrule (1) shall be
followed. Where departmental inquiry is ordered the result of departmental inquiry shall be communicated to the District Magistrate.
(4) Under rule I (6) of Chapter XVI of the Rules and Orders (Criminal) for the guidance of Courts subordinate to the High Court Magistrates are
required to exercise care in making entries of censure on police officers in their judgments, and it is undesirable that they should make remarks in
criminal cases censuring the action of police officers, unless they are supported by the evidence given in the course of the trial and are material to
the decision. If remarks to which exception can be taken come to notice, they should be referred in the first instance to the District Magistrate.''
(14) A perusal of this rule would show that whenever a Superintendent of Police receives a complaint against a police officer that under colour of
his duties he has committed an offence, as defined in the Ranbir Penal Code, the substance of the complaint should be reported immediately to the
District Magistrate who will decide whether the investigation of the complaint should be conducted by a police officer or by a Magistrate. The rule
further lays down that if the District Magistrate decided that the investigation or trial or an enquiry under the Criminal Procedure Code should be
held by a Magistrate he shall proceed in accordance with the instructions laid down in the rules and the orders (Criminal) for the Guidance of
Courts subordinate to the High Court. Subrule (2) provides that in case the District Magistrate decides that the matter should be disposed of
departmentally, the procedure prescribed in the rules for holding a departmental enquiry shall be followed. It is thus apparent that an important
condition which must precede an enquiry against a police officer is a reference to the District Magistrate who has to decide regarding the forum
and the mode of enquiry. Admittedly in the present case no such reference was made to the District Magistrate. The petitioner contends that the
impugned order based on an enquiry in violation of Rule 349 of the Police Rules is a nullity and therefore is liable to be quashed.
(15) Mr. Anil Dev Singh, on behalf of the State, has argued that the allegations against the petitioner did not amount to commission of an offence as
defined in the Ranbir Renal Code. According to him, it was a case of misconduct rather then the commission of an offence and therefore a
reference to the District Magistrate under Rule 349 of the Police Rules was not at all needed.
(16) I, am however, unable to accept the argument of Mr. Anil Dev Singh. The complaint made against the petitioner definitely amounted to an
offence under Section 217 of the Ranbir Penal Code. Section 217 of the Ranbir Penal Code reads thus :
whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public
servant, intending thereby to save, or knowing it to be likely that he will thereby save any person from legal punishment, or subject him to a less
punishment than that to which he is liable, or with intent to save or knowing that he is likely thereby to save any property from forfeiture or any
charge to which it is liable by law, shall be punished with imprisonment of either description for a term which may extend to two years or with fine.
or with both.
(17) There should^ however, be no doubt that the failure on the part of the petitioner to seize an unlicensed muzzle loading country made gun in the
course of the house search of Gogi with an intention to help Gogi to escape punishment for a consideration of illegal gratification amounts to an
offence under Section 217 of the Ranbir Penal Code. A reference therefore under Rule 349 of the Police Rules to the District Magistrate was
indispensably necessary and any enquiry initiated in violation of the said rule was wholly without jurisdiction and the final order based thereupon
must therefore collapse. Mr. Anil Dev Singh, however, argued that the rule 349 of the Police Rules is only directory and not mandatory and an
enquiry held in violation thereof cannot be allowed to frustrate and that no challenge could be thrown to the validity of the order impugned in the
petition on that point This contention of the Assistant Advocate General, (Mr. Anil Dev Singh), cannot be allowed to prevail. There was a definite
purpose behind the enactment of Rule 349 of the Police Rules The discretion given to the District Magistrate to decide as to the forum and the
manner of the enquiry was intended to serve as a check against an arbitrary action of a superior police officer against a subordinate officer. The
District Magistrate had to decide on a consideration of the facts of the cases as to whether the enquiry should be departmentally under the police
Rules or not and in case his decision was against the holding of a departmental enquiry there would have been no occasion for departmental
enquiry having been held at all. This view regarding the provisions of the Rule 349 of the Police Rules being mandatory is supported by a judgment
of the Supreme Court in Union of India Vs. Ram Kishan reported as 1970 Service Law Reporter page 11. In that case the Supreme Court was
called upon to decide as to whether Rule 16.38 Subrule (1) of the Punjab Police Rules was mandatory or directory. Relying on an earlier judgment
of the Court the Supreme Court held that the noncompliance with the provisions of that Rule render the order of dismissal passed against the
servant wholly illegal. Rule 16,38 of the Punjab Police Rules is on the same lines as Rule 349 of the State Police Rules. The judgment of the
Supreme Court, therefore, applies with full force to the facts of the present case. I have no option therefore but to hold that the enquiry formed the
basis of the impugned order in this petition wag4"" violation of Rule 349 of the Police Rules and therefore the enquiry as also the order based
thereupon must fall.
(18) The petitioner further argued that the provisions of rule 33 of the Jammu and Kashmir Civil Services, Classification Control and Appeal Rules
and those contained in Rule 359 of the Police Rules have not been complied with. As I propose to quash the enquiry and the order impugned in
this petition on the ground of violation of rule 349 of the Police Rules, I am not at all called upon to deal with or dispose of this contention, of the
petitioner, on merits as it will be wholly unnecessary to do so.
(19) The last contention of the petitioner is that the order of the Government dismissing the revision application filed by the petitioner is otherwise
invalid as the Government has not considered the contentions raised before it in the revision application. I think the petitioner is right in saying so. A
perusal of the order passed by the Govt. would suggest that the contentions of the petitioner raised in the revision application were repelled only by
saying that the petitioner has taken shelter under constitutional and legal niceties which are superfluous. The tenor of the order shows as if the
Government had hardly any obligation to consider the niceties of the Constitution or of the law, The attitude on the part of the Government does
not appear to me to be palatable. The Government has as much a duty and a responsibility to uphold the Constitution and the Law as this Court
has. In a constitutional system where the Rule of law prevails, every organ of the State has a bounden duty to uphold the Constitution and the law
(20) Mr. Anil Dev Singh, however, argued that the petitioner has not raised these points before the Deputy Inspector General of Police and the
Inspector General of Police and therefore the Government was justified in treating the constitutional and the legal points as superfluous. But a
reference to para 28 (A) of the petition would show that a specific allegation had been made that the pleas were taken both before the D. I. G. and
I. G. P. and it was incorrect on the part of the Government to say that the points for the first time were taken before the Government. This
allegation has not at all been rebutted in the objections or in the counteraffidavit filed on behalf of respondents. There was therefore no justification
to brush aside the contentions on the ground that they related to legal and constitutional niceties or on the ground that the same were not taken
before the DIG or the IGP
(21) For the foregoing reasons therefore the petition succeeds and is accordingly allowed. The order of the DIG dated 12111957 as also the
order of the IGP and the Government dismissing the appeal and the revision application of the petitioner are set aside As the Government has
unjustifiably refused to consider to questions of law raised before it, I feel that the petitioner should be held entitled to the costs in this petition. The
costs are assessed at Rs. 300/.