V.H. Kulkarni vs State of Karnataka

In this writ petition, the petitioner, a Sub-Inspector in the Police department of the State Government, has questioned the legality of a notice issued by the State Government asking him to show cause as to why a departmental inquiry should not be instituted against him on the charges of which he was already exonerated.

FACTS : (1) In the year 1973, the petitioner was working as Sub-Inspector in charge of Magadi Road Police Station in the City of Bangalore. On 16th November, 1973 pursuant to a complaint lodged by one Meenamma alias Ronika about the theft of a gold chain, which her daughter was wearing, in which she suspected that a girl by name Margaret of having committed the offence, that girl was summoned to the Police station. Later she committed suicide. A departmental inquiry was instituted against the constables on the charge that they had misbehaved with and insulted the said Margaret and that was the cause for her committing suicide. They were found guilty of the charge and were dismissed from service.

(2) Two years thereafter on 12th September, 1975 a departmental inquiry was instituted against the petitioner in connection with the same incident. The following charge was framed against him.

"Grave dereliction of duty in connection with the investigation of Magadi Road Police Station Cr. No. 152/73 u/s 379 IPC in having allowed the constabulary to handle the case resulting in the death of a girl by name Margaret who was suspected in the case."

The inquiry officer held that the petitioner was not guilty. The Commissioner of Police accepted the finding, and made a final order on 18th and 20th December, 1975 (Ex - A). It reads :

"Proceedings of the Commissioner of Police, Bangalore City."

Present : Shri M. L. Chandrashekar.

Read : (1) Order No. 204/DE/73 dated 18th August, 1975 appointing the Deputy Commissioner of Police, Traffic as the Enquiry Officer to hold a joint Departmental Enquiry against Shri V. H. Kulkarni, Police Sub-Inspector and Shri Puttabasappa, Asst. Sub-Inspector formerly of Magadi Road Police Station regarding their alleged misconduct and negligence of duty in connection with Cr. No. 152/73 under S. 379 IPC of Magadi Road Police Station.

(3) Minute No. 204/DE/73 dated 18th/20th December, 1975 of the Enquiry Officer.

ORDER NO. 204/DE/73, BANGALORE : Dated : March 24, 1976. I have carefully perused the the Departmental Enquiry Records of Shri V. H. Kulkarni, Police Sub-Inspector (now under suspension) of High Grounds Police Station and Shri Puttabasappa, Asst. Sub-Inspector, Victoria Hospital Out Post formerly of Magadi Road Police Station on the charge of gross dereliction of duty in connection with the investigation of Magadi Road Police Station Cr. No. 152/73 u/s 379 IPC in having allowed the Constabulary to handle the case resulting in the death of a girl by name Margaret, who was suspected in the case. I agree with the Enquiry Officer that the charge framed against the delinquents is not proved. I therefore exonerate the delinquents of the charge framed against them.

Sd/- M. L. Chandrashekar, Commissioner of Police, Bangalore."

The Government in their order dated 1st June, 1976 set aside the order or the Commissioner and directed a de novo inquiry. This was communicated to the petitioner as per order dated 12th June, 1976 of the Inspector General of Police (Exit - B). By that order, the Deputy Commissioner of Police, Crime, Bangalore, was appointed as the specially empowered authority to hold a de novo inquiry on the same charge. Legally of that order was challenged by the petitioner in W.P. 5337/1976. The writ petition was allowed and that order was quashed on the ground that it was made in violation of the principles of natural justice as no opportunity was given to the petitioner to make representation before setting aside the order of exoneration and directing a de novo inquiry. Relevant portion of the judgment reads :

"In view of the fact that the respondents have admitted that the impugned order is violative of the principles of natural justice, the impugned order is liable to be quashed. Mr. Apparao, learned counsel for the petitioner prays for a decision on the competency of the Government of Karnataka to interfere in revision with orders of exoneration passed by the Commissioner of Police u/s 25(2) of the Police Act. It does not appear to be necessary to decide this question since this writ petition can be disposed of on the admission made by the respondents taking further action, the liberty of the petitioner to take the ground of want of competency is reserved.

In this connection, it may be observed that the 1st respondent will have due consideration for the opinion expressed by the two responsible and senior police officers of the police force embarking upon any further action against petitioner. In the event of any further action being taken all the contentions which the petitioner has in this writ petition are left open and he will be at liberty to agitate before this Court or any other Tribunal."

(4) Thereafter the State Government issued the impugned notice dated 12th May, 1977 (Ex - G). It reads :

"No. HD 4 PWP 76 (P) Karnataka Government. Secretary, Vidhana Soudha, Bangalore, dated 12th May, 1977. To

Shri V. H. Kulkarni, Sub-Inspector of Police, HAL Police Station, Bangalore. An enquiry was conducted against you by the Deputy Commissioner of Police (Traffic), Bangalore City on the following charge :

''Grave dereliction of duty in connection with the investigation of Magadi Road Police Station Cr. No. 152/73 u/s 379 IPC in having allowed the constabulary to handle the case resulting in the death of girl by name Margaret who was suspected in the case.''

After enquiry the Commissioner of Police, Bangalore City passed order in No. 204/DE/73, dated 24th March, 1976.

Government has examined the records of the enquiry and the circumstances of the incident in connection with the Enquiry and consider that a disciplinary proceeding is to be initiated against you for failure to exercise proper supervision over subordinates and to follow prescribed procedure.

You are therefore hereby directed to show cause within 15 days from the date of receipt of this letter as to why a disciplinary proceeding should not be instituted against you.

Sd/- K. C. K. Raja, Addl. Secretary to Government, Home Department."

The petitioner has challenged the legality of the above notice.

The petitioner has raised two contentions :

(i) The State Government has no legal authority to institute a second departmental inquiry on the same charge of which the petitioner has been exonerated in a regularly held departmental inquiry; and

(ii) That in any event, so long the order of exoneration stands and is not set aside after complying with rules of natural justice, a second inquiry on the same charge is impermissible.

Shri S. V. Narasimhan, learned High Court Government Pleader, appearing for the respondents, submitted that the Government has such power u/s 25(2) of the Karnataka Police Act, 1963 (''the Act'' for short).

Section 25(2) of the Act reads :

"25. Appeals and Revision.

(1) *** *** *** (2) The Government may suo motu or otherwise after calling for the records of the case revise any order u/s 23 of sub-section (1) of this section passed by the Inspector-General or any officer subordinate to him, and

(a) confirm, modify or set aside the order;

(b) impose any penalty or set aside, reduce, confirm or enhance the penalty imposed by the order;

(c) remit the case to the authority which made the order or to any other authority directing such further action or inquiry as it considers proper in the circumstances of the case; or

(d) pass such other orders as it deems fit;

Provides that -

(i) an order imposing or enhancing a penalty shall not be passed unless the person concerned has been given an opportunity of making any representation which be may wish to make against such enhanced penalty;

(ii) if the Government proposes to impose any of the penalties specified in clauses (1) to (iv) of sub-clause (b) of sub-section (1) of Section 23 in a case where an inquiry has not been held, it shall direct that such inquiry be held and thereafter on consideration of the proceedings of such inquiry and after giving the person concerned an opportunity of making any representation which he may wish to make against such penalty, pass such orders as it may deem fit."

The above provision confers various powers on the Government.

(1) Clause (a) empowers the Government to confirm, modify or set aside the order made in a disciplinary proceeding. Thereafter there can be no doubt that under this clause the Government has the power to set aside the order of exoneration made in favour of the petitioner.

(2) Clause (b) inter alia empowers the Government to impose any penalty. Therefore, under this clause read with clause (a) the Government has the power to set aside the order a exoneration made in favour of the petitioner and impose any major penalty specified in Section 23(b)(i) to (iv) of the Act on him, but after giving an opportunity to make representation as provided in clause (i) of the proviso or after directing the holding of inquiry in cases where no inquiry was held, as permitted by clause (ii) of the proviso.

(3) Clause (c) empowers the Government to remit a case for further inquiry. This clause read with clause (a) empowers the Government to set aside the order of exoneration made in favour of the petitioner and to remit the matter for further or de novo inquiry.

(4) Clause (d) empowers the Government to pass such other order it deems fit.

What the Government has proposed to do as indicated in para 3 of the impugned notice is something which is not authorised by any of the clauses of Section 25(2) of the Act. The notice does not state that the Government proposes to set aside the order of exoneration on any specified grounds and -

(i) proposes to impose penalty in the inquiry proceedings already held, or

(ii) proposes to remit the matter for further or re-inquiry,

and call upon the petitioner to make his representation against any such proposal.

What the Government has said in the impugned notice is that it proposes to institute an inquiry on a charge specified therein, which is the same of which the petitioner has already been exonerated.

The petitioner''s contention is that Section 25(2) of the Act does not empower the Government to institute a second inquiry. Learned counsel for the respondents submitted that Section 25(2) of the Act empowers the Government to direct a second inquiry and in particular he referred to clause (d) which empowers the Government to pass any order it deems fit.

For the purpose of this case, it is sufficient to and I shall, proceed on the basis, that the submission made for the respondents is correct and hence I decline to go into the first contention. Even so, it should be pointed out that the holding of a second inquiry arises only after the order of exoneration in the first inquiry as also the entire proceedings are set aside. Such an order which would be adverse and highly prejudicial to the interests of the officer already exonerated of the charge, in an inquiry held by a competent authority could made, only after conforming to the rules of natural justice.

In fact by the order impugned in the earlier writ petition the order made in the earlier inquiry was set aside and a de novo inquiry was ordered. That order was set aside in that writ petition on the ground that it was made in violation of the principles of natural justice. The impugned notice again suffers from the same infirmity. Without first asking the petitioner as to why the order of exoneration made in his favour should not be set aside setting out valid grounds for doing so and making an order after considering the reply, if any, furnished by the petitioner, setting aside that order, no second inquiry is possible.

In my view Section 25(2) of the Act confers no powers to institute a second inquiry on the same charge of which a police officer was exonerated in an inquiry so long that order stands and that order can be set aside only after complying with the rule of natural justice, i.e., audi alterm partem. The jurisdiction to remit the matter for further inquiry, or to direct a de novo inquiry arise only after setting aside the earlier order of exoneration or the entire proceedings which culminated in the order of exoneration as the case may be. That not having been done, the impugned notice is without authority of law.

For the reasons stated above, I make the following Order :

(i) Rule made absolute.

(ii) The impugned notice dated 12th May, 1977 (Ex - G) is quashed.

(iii) The petitioner is entitled to the costs Advocate''s fee Rs. 250/-.