Bhupendra Singh v. State Of Bihar — 1977 DIGILAW 189 (PAT)

Judgment Hari Lal Agarwal, J. 1. The short question that arises for our decision in this writ application is as to whether respondent No.2, a Superintendent of Police, could pass an order of suspension against the petitioner, who was a sergeant, in the course of a departmental enquiry conducted by him. 2. The petitioner, an ex-Military personnel, was appointed in the year 1975 by the Deputy Inspector-General (Administration) of Police, Bihar, and at the relevant time he was posted at Bhagalpur to the post of a Sergeant and was acting as the Motor Transport Officer of the district force. He was also incharge of vehicles, petrol, garments, etc. and was also provided with residential quarters in the Police Lines, Bhagalpur. On 16.5.1977, according to the case of the petitioner, one Ram Nagina Singh, Reserve Sub-Inspector of Police lines, Bhagalpur, and his sons were plucking mango fruits from a tree in the compound of the petitioners quarters who on his protest, abused and assaulted him and sanatched away his wrist watch and some money from bis pocket. The petitioner reported the matter in writing to the Superintendent of Police, bhagalpur, on the same day, but inasmuch as he was out of station, the Deputy superintendent of Police, who was incharge of the office ordered an enquiry by another Deputy Superintendent of Police. 3. The petitioner also filed a petition of complaint against the aforesaid ram Nagina Singh and his two sons in the court of the Chief Judicial Magistrate, bhagalpur, on 17.5.1977 under Sections 323/376/504 and 448 of the indian Penal Code. 4. The case of the respondents on this question, according to their counter affidavit, however, is that the petitioner himself had indulged in picking up a quarrel with Ram Nagina Singh and inflicted injuries on him. The genesis of the occurrence, as alleged by the petitioner, is denied. It is further stated on behalf of the respondents that the complaint case was filed by the petitioner enclosing a copy of the petition that he had filed before the Deputy superintendent of Police, in absence of the Superintendent of Police, although he was refused permission to take the matter to the Court in the interest of discipline and the morale of the force, and thereby the petitioner violated the departmental rules and procedure. 5. 5. The Deputy Superintendent of Police to whom the enquiry was referred, as already said earlier, submitted his report. According to the counter affidavit of the respondents, the said report was vague and, accordingly, the superintendent of police ordered another enquiry by one Shri B. N. Ojha, who was an experinced Deputy Superintendent of Police and senior to the Deputy superintendent who had submitted the earlier inquiry report as the incident appeared to be serious and involved gross indiscipline. It further appears from the counter affidavit that Ram Nagina Singh had also filed a petition about the incident in question before the Superintendent of Police on the same day which was forwarded by the Sergeant Major to the Superintendent of Police on the next day. The Superintendent of Police returned to his Headquarters on 20th May 1977, and after coming to know about the incident, he visited the Police Lines to verify the facts and also interrogated the petitioner. The petitioner has made personal allegations against the Superintendent regarding his bias and prejudice against him which, however, have been denied in the counter affidavit, but inasmuch as we are not concerned with all those details, the same are npt necessary to be stated. 6. The second Enquiring Officer, Shri B. N. Ojha, submitted his report and the Superintendent of Police passed the impugned order of suspension on 24th May, 1977, which was served on the petitioner under Memo No.1496 of that date a copy of which has been made Annexure "5" to the writ application, placing him under suspension forthwith. The petitioner was also served with a charge-sheet of even date containing four charges, a copy of which has been made Annexure 6 to the writ application. In the order of suspension, it has been stated that the petitioner had committed gross misconduct in assaulting ram Nagina Singh without any reasonable cause on 16.5.1977 in the police lines compound, as a result of which he sustained injury on his face. By this action, the petitioner caused serious breach of discipline and thereby undermined the image of the Police force. The suspension order further states that the petitioner was also found to be keeping outsider girls in his official quarters, in absence of his family, suspiciously for immoral purposes, which had caused resentment and discontentment among the police officers men and their families living in the Police Lines compound. The suspension order further states that the petitioner was also found to be keeping outsider girls in his official quarters, in absence of his family, suspiciously for immoral purposes, which had caused resentment and discontentment among the police officers men and their families living in the Police Lines compound. His rushing to file a complaint case without referring the matter to the superior officers for necessary action against Ram Nagina Singh exhibited an act of gross indiscipline and insubordination. 7. Charges have been framed against the petitioner on the above allegations and there it has been stated that the incident that took place on 16th May, 1977, between the petitioner and Ram Nagina Singh was not on account of the plucking of mangoes from a tree, but was on account of the objections that were taken by Ram Nagina Singh for the petitioner keeping two outsider girls in his quarter. The charge specifically states that enquiry revealed that the petitioner was keeping one Kasmira, a girl aged about 20 years, and Ritamathara, another young girl aged about 25 years (both unmarried) who belonged to different castes and were not even remotely related to him and with whom he had intimacy from the time of his previous posting at Dumka. 8. The keeping of the aforesaid girls by the petitioner, however is not denied in the writ application, but his case is that "the girls in question were family members of the petitioner and their parents have made the petitioner their local guardian". 9. As already said above, the petitioner has challenged the order of his suspension (Annexure 5) and the framing of the charges (Annexure 6) on the ground that the Superintendent of Police (respondent No.2) not being his appointing authority had no power either to suspend or to frame charges against him and, therefore, the same were illegal and without jurisdiction. 10. As already said above, the petitioner has challenged the order of his suspension (Annexure 5) and the framing of the charges (Annexure 6) on the ground that the Superintendent of Police (respondent No.2) not being his appointing authority had no power either to suspend or to frame charges against him and, therefore, the same were illegal and without jurisdiction. 10. The stand of the respondents in their counter affidavit on this score is that the Superintendent of Police was fully empowered to frame charges against the petitioner and to place him under suspension in pursuance of Rule 840 (a) of the Bihar and Orissa Police Manual as well as section 7 of the Police act, 1861, and inasmuch as the order of interim suspension by itself did not constitute any punishment, the Superintendent of Police had express powers of placing the petitioner, who was a subordinate officer, under suspension pending the departmental inquiry into his misconduct. 11. Mr. Jai Narayan, who appeared in support of the application, challenged the order of interim suspension of the petitioner on the ground that respondent No.2 was not competent to pass the same and that rule 840 of the Bihar and Orissa Police Manual did not give respondent No.2 a blanket power to put the petitioner under suspension as the suspension was not necessary in "public interest". He, further, contended that rule 840 of the police Manual had no statutory force and, therefore, any order passed in purported exercise of the powers conferred under the said rule could not be upheld. 12. In order to appreciate these contentions, it would be advantageous to quote some of the provisions of the Police Act and the Police Manual. Section 7 of the Police Act reads as follows : - "appointment, dismissal, etc. , of inferior officers subject to the provisions of Article 311 of the Constitution, and to such rules as the State Government may from time to time make under this act, the Inspector General, Deputy Inspector General, Assistant inspector General and District Superintendents of Police may at any time dismiss, suspend or reduce any police officer of the subordinate ranks whom they shall think remiss or negligent in the discharge of his duty, or unfit for the same,. . . . . . . . . " Sec.12 of the Police Act empowers the Inspector General to frame orders and rules relating to the organisation, classification and distribution of the police force subject to the approval of the State Government as he may deem expedient for preventing abuse or neglect of duty, and for rendering such force efficient in the discharge of its duties. 13. According to its very preface, the Bihar and Orissa Police Manual, 1930, "is issued by and with the authority of the local Government under Secs.7 and 12 of the Police Act V of 1861" Chapter XXV of this Manual deals with punishments. Rules 824, 825 and 840 have been specifically shown to have been sanctioned under section 7 of the Police Act. Rule 824 enumerates the various departmental punishments which may be inflicted on a police officer below the rank of Deputy Superintendent. Rule 825 enumerates the officers who are empowered to impose punishment, and clause (d) of this rule empowers a Superintendent to "impose on any police officer subordinate to him and below the rank of Inspector any one or more of the punishments in rule 824 except dismissal and removal in the case of Surgeant, Sub-inspector, Jamadar or Assistant Sub-inspector, provided that the Superintendent shall send to the district Magistrate a report of the result together with the proceedings" in certain specified circumstances enumerated therein, with which we arc not concerned here. Rule 840 (a) deals with suspension and reads as follows : "a Deputy Inspector General or Superintendent may suspend any police officer subordinate to him or below the rank of inspector pending enquiry into his conduct. Suspension is authorised only in cases in which the continuance on duty of an officer pending enquiry into his conduct is prejudicial to public interest. When, however, an officer is believed to have been guilty of giving false evidence in court he should not be suspended on that account, until the court has pronounced judgment since his suspension might have the appearance of an attempt to prejudice the decision of the case. If in such a case it appears to be contrary to the public interest transfer him to other duty without loss of pay. Suspension shall not be awarded as a specific punishment. " 14. If in such a case it appears to be contrary to the public interest transfer him to other duty without loss of pay. Suspension shall not be awarded as a specific punishment. " 14. It may be stated if the rank of a sergeant is that of a sub-inspector, and reading rule 825 of the Manual, it is evident that a Superintendent of Police is competent to impose on any police-officer below the rank of inspector any one or more of the punishments mentioned in rule 824, except dismissal and removal in certain circumstances. That stage, however, has not come as yet as the matter is still at the stage of departmental enquiry. Similarly, rule 840 (a) empowers a Superintendent of police to suspend any police officer subordinate to him of or below the rank of inspector pending enquiry into his conduct. It is, no doubt, true that the power of suspension has been authorised to be exercised in such cases in which the continuance on duty of an officer pending enquiry into his conduct is prejudicial to public interests. There does not, therefore, appear to be any force in the contention of Mr. Jai Narayan that the order of interim suspension of the petitioner passed by respondent no.2 is invalid and that rule 840 -has got no statutory force. As already seen above, rule 840 has been duly sanctioned under section 7 of the Police Act by the State Government and the said rule clearly empowers a Superintendent of police to suspend any police officer subordinate to him or below the rank of inspector pending enquiry into his conduct. 15. The further contention of Mr. Jai Narayan that the order of suspension of the petitioner, being not in public interest cannot be maintained, has equally got no force. The police force, as a matter of course, is concerned with the maintenance of law and order, and if the conduct of the petitioner, his living and behaviour was a cause of annoyance and disturbance in a rank and file of the police force, the question of his suspension certainly involved public interest. The police force, as a matter of course, is concerned with the maintenance of law and order, and if the conduct of the petitioner, his living and behaviour was a cause of annoyance and disturbance in a rank and file of the police force, the question of his suspension certainly involved public interest. Though the impugned order of suspension does not speak in so many words of any public interest in putting the petitioner under suspension, the circumstances appearing against him, as mentioned above and stated in the order of suspension, themselves speak eloquently against him, and from those it cannot be disputed that his suspension was essential in the larger public interest. 16. Now remains for consideration the main argument of Mr. Jai narayan that as the petitioner could not have been dismissed by any authority subordinate to the appointing, he could not have been suspended by any such authority. He placed reliance in support of this argument on section 16 of the general Clauses Act. Sec.16 confers a general power upon an appointing authority to order suspension as a matter of necessary adjunct of the power of appointment, to suspend or dismiss any person appointed by it in exercise of the power of making any appointment. But this provision itself provides for exemptions by providing "unless a different intention appears". This provision cannot to be read to mean that this debars any other authority than the appointing authority to have any power to suspend any person, if there is a specific provision made in that regard. We have seen that section 7 of the police Act, inter alia, empowers a District Superintendent of Police to dismiss, suspend or reduce in rank any police officer subordinate to him on the grounds mentioned therein. Respondent No.2 (the Superintendent of Police) is, therefore, a statutory authority who can appoint and dismiss any police officer of a rank subordinate to him. This power of respondent No.2 has rightly not been questioned by Mr. Respondent No.2 (the Superintendent of Police) is, therefore, a statutory authority who can appoint and dismiss any police officer of a rank subordinate to him. This power of respondent No.2 has rightly not been questioned by Mr. Jai Narayan and once this position is clear, in my opinion, there can be no argument that respondent No.2 who could pass the final order of suspension as a measure of punishment after completion of the departmental proceeding, could not pass the order of suspension as an interim measure during the pendency of the enquiry when the exercise of such power is authorised and contemplated by rule 840 of the Police Manual. But before recording any concluded opinion on this question, I would refer to some of the authorities which were cited at the Bar. 17. Reliance was placed by the learned Government Pleader No. II on state of Madhya Pradesh and others V/s. Shardul Singh, 1970 (1) SC cases 108. The question that arose in that case was as to whether a Superintendent of Police was competent to initiate a departmental inquiry against a sub-inspector of police, who was appointed by the Inspector General. The Superintendent after holding inquiry as prescribed by the Central Provinces and Bihar Police Regulations had sent his report to the Inspector General, who after perusing the explanation to show cause notice for dismissal issued by him, dismissed the sub-inspector. The High Court set aside the order of dismissal holding that the inquiry held by the Superintendent of Police was against the mandate of Article 311 (1) of the Constitution as he was incompetent to inliate or conduct the inquiry, being not the appointing authority. On appeal to the Supreme Court by the state, the judgment of the High Court was set aside and it was observed that article 311 (1) did not in terms require that the authority empowered under that provision to dismiss or remove an official, should itself initiate or conduct the inquiry preceding for the dismissal or removal of an officer. Mr. Jai narayan, however, contended that the order of interim suspension of the petitioner was even more serious than the final order of suspension awarded as a measure of punishment. There is no force in this contention. Suspension pending a departmental inquiry is not an order of punishment but this power is based on principles of sound public policy. Mr. Jai narayan, however, contended that the order of interim suspension of the petitioner was even more serious than the final order of suspension awarded as a measure of punishment. There is no force in this contention. Suspension pending a departmental inquiry is not an order of punishment but this power is based on principles of sound public policy. Where it is left that the continuance on duty of a public servant pending inquiry would be prejudicial to public interest, he can be placed under suspension. Such an order cannot be said to be by way of punishment. This view finds direct support from a bench decision of this Court in Emperor V/s. Mohammad Fazle Ban, AIR 1944 patna 256. It was held in that case that where a police officer has been reported against as having been negligent in the discharge of his duties with the result that a proceeding has been started against him for holding an inquiry into his alleged misconduct, and the Superintendent of Police having taken the view that his continuance on duty pending the inquiry would be prejudicial to public interest, he could place him under suspension under rule 840 of the Police Manual and such an order was not by way of punishment. In this case also the delinquent was a sub-inspector of police and the order of suspension pending departmental inquiry was passed by a Superintendent of Police, as in the case before us. 18. Mr. Jai Narayan placed reliance upon the case of R. P. Kapoor V/s. Union of India, AIR 1964 Supreme Court 787. This was a case under All india Services (Discipline and Appeal) Rules 1955. In pursuance of rule 7 of these Rules, a member of former Secretary of States Service was suspended pending a criminal charge against him by an authority other than the government of India. That order was set aside by the Supreme Court on the ground that rule 7 of the Discipline and Appeal Rules was ultra vires article 314 of the Constitution. 19. This authority can have no application to the present case inasmuch as the petitioner could not have claimed protection under Article 314 of the Constitution. But that apart, Article 314 has since been repealed in the year 1972 by the Constitution (Twenty eight Amendment) Act, Mr. 19. This authority can have no application to the present case inasmuch as the petitioner could not have claimed protection under Article 314 of the Constitution. But that apart, Article 314 has since been repealed in the year 1972 by the Constitution (Twenty eight Amendment) Act, Mr. Jai narayan was unable to show us any rule which restricts the power given by section 7 of the Police Act to Superintendents of Police. 20. I may also refer to the case of Babu Ram V/s. Dominion of India, AIR 1952 Punjab 337, where a Sub-Inspector of Police appointed by the Deputy inspector General of Police was dismissed by a Senior Superintendent of police in pursuance of the powers conferred upon him under section 7 of the police Act. That order was challenged by the Sub-Inspector on the ground that he having been appointed by the Deputy Inspector General, could not be dismissed by a Superintendent of Police. The contention was rejected and it was held that under the provisions of section 7 of the Police Act, the order passed by the Superintendent of Police was quite valid. 21. On a consideration of the various provisions of the police Manual, and of the Police Act and some of the relevant authorities discussed above, it must be held that the order of suspension passed by respondent No.2 against the petitioner under rule 840 of the Police Manual was quite valid. As respondent no.2 is quite competent to initiate and conduct the departmental inquiry, the charges served upon the petitioner (vide Annexure 6) also are valid. 22. This writ application, therefore, is devoid of any merit and it must fail. In the circumstances of the case, there will be no order as to costs. Petition dismissed.