Syed Syfulla vs Supdt. of Police, Shimoga.

On 27.9.1975 the petitioner, who was working as a police Constable at Doddapet Police Station, Shimoga City, was alleged to have detained two bags of sugar belonging to one Ibrahim Beig and demanded a sum of Rs. 50 from that person as illegal gratification for their release, which was reported by the Police Sub-Inspector of that station to the Superintendent of Police, Shimoga (hereinafter referred to as the SP). On that report of the PSI, the SP by his memo No. DE 24/75 dated 30.9.1975 (Ex-A) placed the petitioner under suspension and directed the PSI to hold a preliminary enquiry, who accordingly held a preliminary enquiry and submitted his report on 23.10.1975 to the SP. On a consideration of that report, the SP by his memo No. DE 24/75 dt. 4.12.1975 (Ex-B) initiated disciplinary proceedings against the petitioner under the Karantaka State Police (Disciplinary Proceedings) Rules, 1965 (hereinafter referred to as the Rules) framed under the Karanataka Police Act, 1963 (Kar. Act 4 of 1964) (hereinafter referred to as the Act) appointing the Circle Inspector of Police, Shimoga (hereinafter referred to as the CPI) to hold a regular enquiry.

On the basis of the order of the SP, the CPI issued a charge memo No. DE 24/75 76 dated 20.12.1975 (Ex-C) along with the statement of allegations levelling the marginally noted* charge against the petitioner and called upon him to state his defence.

*Exhibiting gross mis-conduct and harassment to one Ibrahim Beig of Totadakere on 27.9.1975 in having detained illegally the two sugar bags belonging to the above said Ibrahim Beig and demanded an illegal gratification of Rs. 50/- from the said person.

In answer to the said charge memo, the petitioner filed his statement denying the charge level- led against him. In that view, the CPI held a regular enquiry and submitted his report to the SP on 14.4.1976 (Ex-D) exonerating the petitioner of the charge levelled against him.

On a consideration of the said report of the CPI, the SP passed an order on 30.4.1976 (Ex-F) directing a denovo enquiry to be held against the petitioner for the reasons stated therein. The said order made by the SP reads thus:

Sub:DE against PC 260 Syed Saifulla dt. 4.12.1975 of Doddapet PS. Reff: 1. This office order of even No. dt. 4.12.1975.

Minute dt. 18.4.1976 OP Shimoga i.e., E.O.

Persued the minute of DE including connected records and found that the enquiry officer has conducted this DE highly perfunctorily without following the prescribed procedure. He has left out the most important witness i.e., PSI Sri S.V. Ganesh Rao who conducted preliminary enquiry, who reported his finding to the Superintendent of Police who in turn placed the delinquent under suspension followed by the D.E. No attempts were made to find out the facts and no attempts were made to appreciate available evidence. Hence, I order a de novo D.E. to be taken up in this regard and I will personally take up the enquiry afresh."

Even though the SP stated in his order, that he will personally hold the de novo inquiry, but disregarding the same, fie later on 26.5.1976 appointed the Deputy superintendent of Police. Bhadravathi (hereinafter referred to as the DY. S.P.) as the Enquiry Officer to hold the fresh or de novo inquiry against the petitioner.

In pursuance of the aforesaid order of the SP. the Dy. SP held a fresh inquiry into the very same charge levelled earlier and submitted his report on 22.11.1976 to the SP recording a finding of guilt against the petitioner. On a consideration of that report, the SP by his order No. DE 3/76 dt. 15.1.1977 (Ex-L) dismissed the petitioner from service from the date of communication of his order.

On 3.2.1977 the petitioner moved this Court under Art. 226 of the Constitution challenging the said order of the SP without availing the legal remedy of an appeal and thereafter a revision provided by the Act and the Rules with a prayer for stay of the said order. But, despite the same and the threshold bar to entertain the writ petition brought about by the 42nd Amendment of the Constitution from 1.2.1977. Bhimiah J, (as he then he was) on 4.2.1977 issued rule nisi in the case and ordered emergent notice on the interim prayer. On 18.8.1977, the same learned Judge stayed the operation of the impugned order and therefore, the petitioner has continued in service from that date.

At this stage itself it is relevant to notice that while the disciplinary proceedings were pending, the petitioner was prosecuted for an offence under S. 380 IPC for committing theft of two bags of sugar, in the Court of the Chief Judicial Magistrate, Shimoga, who by his judgment dt. 23.4.1976 (Ex-E) acquitted the petitioner of that charge.

Among other grounds, the petitioner has urged that it was not open to the SP to start a de novo enquiry, appoint a new enquiry officer and punish him on the basis of that report.

In his return, the respondent while justifying the impugned order has urged that the petitioner who had not availed the legal remedy of an appeal and a revision had acquiesced in his order dt. 30.4.1976, participated in the fresh enquiry and therefore he cannot be permitted to challenge any of them and this Court should decline to exercise its extraordinary jurisdiction on both those grounds.

Sri K. Sridhar, learned counsel for the petitioner, contends that it was not open to the SP to start a de novo enquiry, get a fresh report from another officer and punish his client on the basis of that report. In support of his contention Sri Sridhar strongly relies on the ruling of the Supreme Court in K.R. Deb v. The Collector of Central Excise, AIR 1971 SC. 1447.

Sri B.B. Mandappa, learned Government Advocate appearing for the respondent, in supporting the impugned order, urged that this is a fit case in which this Court should decline to exercise its extraordinary jurisdiction on the grounds that the petitioner had not availed the alternative and efficacious legal remedy of an appeal and a revision available to him under the Act and the Rules and that he had also acquiesced in the order dt. 30.4.1976 made by the SP.

As the preliminary objections urged by Sri Mandappa go to the root of the matter, it is proper to examine them first and deal with the merits, if the same becomes necessary. I, therefore, proceed to examine them first.

In para 8 of his petition, the petitioner has averred that against the impugned order he had no other alternative, efficacious and expeditious remedy open to him. But, the impugned order was appealable both on questions of fact and law under Sec. 25 of the Act before an appellate authority and thereafter or simultaneously in a revision before Government and if Art. 226 of the Constitution as amended by 42nd Amendment had continued, this petition should be dismissed for not availing those legal remedies, is not rightly disputed by Sri Sridhar.

But, Sri Sridar contends that having regard to the restoration of Art. 226 of the Constitution to its preeminent position from 20.6.1979 by the 44th Amendment, issue of rule nisi on 4.2.1977 and the pendency of this petition from that date, this is a fit case in which this Court should exercise its extraordinary jurisdiction and examine the merits of the case.

Art. 226 of the Constitution restored to its orginal pre-eminent position by the 44th Amendment, empowers this Court to exercise its power notwithstanding the fact that a party had not availed the legal remedy of an appeal and a revision. With the disappearance of the threshold bar, the existence of an alternative legal remedy and its non-availment, if any, is only a factor to be taken into consideration in deciding whether this Court should or should not exercise its extraordinary jurisdiction in a given case. Even here, it would be more proper to take that into consideration at the very preliminary hearing stage of issuing rule nisi and not at the final hearing by which time the limitation for availing the legal remedy is completely lost. Without any doubt, the dismissal of the writ petition on such a ground at this belated stage, is neither in the interest of the parties nor the interests of justice. For these reasons, I reject this objection of Sri Mandappa.

Against the order dated 30.4.76 of the SP, it was open to the petitioner to file an appeal or a revision or approach this Court under Art. 226 of Constitution. Alternatively, it was also open to him to appear before that very authority and urge that the de novo enquiry commenced was unauthorised and impermissible.

Before the new Enquiry Officer, the petitioner inter alia urged that the de novo enquiry commence against him by the SP was unauthorised and impermissible. But, the Enquiry officer proceeded with the enquiry as he was bound to and submitted his report on the basis of which the SP has made the impugned order.

On the completion of the enquiry, what view the Enquiry Officer would have taken or what order the SP would make could not be comprehended before the completion of the enquiry and the order made by the SP. If the new Enquiry Officer had exonerated the petitioner aswas done on the first occason and the SP on a consideration of the same bad accepted it and dropped the proceedings, the question of challenging either of them by the petitioner would not have arisen. But, the fact that the new enquiry officer proceeded with the enquiry, recorded a finding of guilt and the SP made an adverse order, cannot take away the right of the petitioner to challenge their validity and more so the validity of the final order made by the SP.

Even otherwise the order made by the SP on 30.4.1976 was an interlocutory order and, therefore, it is open to the petitioner to challenge its validity in this proceeding.

On any view of the matter, it is difficult to hold that the petitioner had acquiesced and, therefore, it is not open to him to challenge the de novo enquiry held and the punishment imposed against him. In my view, the principle enunciated by the Division Bench in Syed Hassan Ali v. State of Mysore, (1965) 1 Mys. L.J. 422, does not bear on the point.

On the above discussion, I hold that there is no merit in the second preliminary objection urged by Sri Mandappa and I reject the same.

As I have rejected the two preliminary objections urged for the respondent, it is now necessary to examine the merits of the contention urged for the petitioner I, therefore, now proceed to examine the same.

The disciplinary proceeding were instituted against the petitioner tinder the Rules only is not and cannot be disputed.

The rules empowered the SP to personally hold an enquiry or appoint an Enquiry Officer, and exercising that power the SP appointed an enquiry officer, who on a consideration of the evidence placed before him submitted his report exonerating the petitioner.

As to how the matter should be regulated on receipt of a report from an enquiry officer is set out in sub-rules (9) to (13) of Rule 6 of the Rules. The SP has to follow that and that procedure only and cannot invent a procedure of his own.

Sub-rule (9) of Rule 6 of the Rules that is material reads thus:

"(9) The disciplinary Authority shall, if it is not the Enquiring Authority, consider the record of the enquiry and record its findings on each charge, either agreeing or not agreeing with the findings of the Enquiring Authority and in the case of disagreement, recording its reasons therefor."

The above sub-rule authorises the Disciplinary Authority to disagree with the conclusions reached by the Enquiry Officer on the very evidence placed before him and record a finding of guilt also. The finding recorded by the Enquiry Officer is not binding on the Disciplinary Authority. This is the course that was open to the Disciplinary authority, if he found that the Enquiry Officer had recorded all the evidence and there was no other illegality vitiating the enquiry.

The Rule unlike Rule 11A of the Karnataka Civil Services (CCA) Rules. 1957, does not expressly provide for remitting the matter to the Enquiry Officer, if the Disciplinary Authority finds that the enquiry officer had not recorded the evidence or had committed an illegality in the conduct of the enquiry. But, still on general principles, it is possible to infer that sub-rule (9) empowers the disciplinary authority to direct the enquiry officer to record the evidence of those witnesses cited but not examined, point out the illegality in the conduct of enquiry with reasons in support of the same and direct the enquiry officer to hold a further enquiry and submit his report on the evidence already on record and to be placed before him by the department and the delinquent official: If the very same enquiry officer is available, it would be proper to direct that very enquiry officer to hold the further enquiry. But, if for any unavoidable circumstance like the death of the enquiry officer, then the necessity of appointing a new enquiry officer will have to be examined and decided. But, even there, the direction should be to hold a further enquiry and not a de novo enquiry.

In Deb''s case, AIR 1971 SC. 1447, the Supreme Court was considering a more or less similar question that arose for consideration under the Central Civil Services (CCA) Rules, 1957 (hereinafter referred to as the CCA Rules). Rule 15 of the CCA Rules is analogous to rule 6 of the Rules. In taking exception to the punishment imposed on a de novo enquiry against K.R. Deb. a unanimous Constitution Bench of the Supreme Court reversing the judgment of the Judicial Commissioner, Tripunal observed thus:

"13. It seems to us that Rule 15, on the face of it, really provides for one enquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the enquiry or some important witnesses were not available at the time of the enquiry or were not examined for some other reason, the Disciplinary Authority may ask the Enquiry Officer to record further evidence. But, there is no provision in Rule 15 for completely setting aside previous enquiries on the ground that the report of the Enquiring officer or officers does not appeal to the Disciplinary Authority. The Disciplinary authority has enough powers to reconsider the evidence itself and come to its own conclusion."

In my view, the above principle applies on all fours to the question that arises for determination in the present case.

On the construction of Rule 6 of the Rules placed by me, which as I apprehend is concluded by the ruling of the Supreme Court in Deb''s case, it has to be held that the order made by the SP on 30-4-1976, the enquiry held and the ultimate punishment imposed in the impugned order are unauthorised, manifestly illegal and are, therefore, liable to be quashed.

The charge levelled against the petitioner is a serious one. But, the orders made by the SP on 30-4-1976 and, thereafter are illegal. As to how the SP would have regulated the matter if he had read the Rules and comprehended their true scope and ambit, cannot be predicated by me. In these circumstances, it is proper to direct the SP to re-examine the matter without reference to the orders made by him on 30-4-1976 and thereafter.

On receipt of the report of the CPI, a little reflection by the SP would have avoided an abortive enquiry, waste of precious public time and even this writ petition before this Court. But, alas, that appears to be the position in many a disciplinary proceeding before many a Government Department. I fervently hope that this case will be an eye opener and such mistakes will be avoided in all departments of Government atleast in future.

In the light of my above discussion, I quash the order dated 30-4-1976 (Ext.-E), the report dated 30-11-1976 of the Dy. SP and the order dated 15-1-1977 (Ext.-L) of the SP and direct him to re-examine the report dated 18-4-1976 (Ext.-D) of the. CPI without reference to the above orders and make his order in accordance with law and the observations made in this order.

Writ petition is disposed of in the above terms, But in the circumstances of the case, I direct the parties to bear their own costs.

Let a copy of this order be communicated to the respondent and the chief Secretary to Government on or before 31-12-1982 for such action as the latter also deems fit.