JUDGMENT : ( 1. ) THIS petition under Article 226 of the Constitution of India, filed in June 1984, is for quashing the order dated 20-2-1981 passed by the superintendent of Police, Indore, in the common Departmental Enquiry held against the petitioner and five others, wherby he has been dismissed from Service. ( 2. ) IT is not in dispute that at the relevant time, the petitioner was holding the post of Assistant Sub-Inspector of Police, Indore. He was appointed to the post by the Deputy Inspector General of Police by his order dated 13-2-1970 (vide ann. 4 ). The petitioner appealed to the Deputy Inspector General from the order of dismissal. That appeal was dismissed on 16-6-1981. ( 3. ) THE facts giving rise to this petition are these : The Supdt. of Police, indore had imposed punishment of censure on two police personnel who were office-bearers of the Union of non-gazetted police officials and had initiated actions in two other cases on complaints by the public. For setting aside those orders, the police personnel had indulged in agitational activities including gherao and slogans against the Superintendent of Police Ashok Patel on 14- 12-1980. On the following day on information about the agitation, some police personnel at Police Station, Mhow had also joined the agitation and had indulged in slogans against the Supdt. of Police and others. The Supdt. of Police, Indore initiated Departmental Enquries against the agitators. The charge framed against the petitioner is in respect of the said agitation. ( 4. ) IN the petition, amongst other grounds, it has been contended that the dismissal being by an authority subordinate to the petitioners appointing authority is violative of Article 311 (1) of the Constitution of India and deserves to be struck down. It has also been contended that there has been violation of the principles of natural justice inasmuch as the Supdt. of Police Ashok Patel against whom the agitation was directed, had himself initiated the Departmental Enquiry and had passed the impugned order. There is the further contention that amongst other rules, Rules 14 and 18 of the Civil Services (Classification, Control and appeal) Rules, 1966 (for short, the Control and Appeal Rules) have also been violated as common proceeding was without any specific order for the purpose. ( 5. There is the further contention that amongst other rules, Rules 14 and 18 of the Civil Services (Classification, Control and appeal) Rules, 1966 (for short, the Control and Appeal Rules) have also been violated as common proceeding was without any specific order for the purpose. ( 5. ) IN the return filed on behalf of the respondents, the various statements made by the petitioner were denied. It was stated that the petitioner was governed by the police regulations framed, under the Police Act, 1861. It was contended that the provisions of Control and Appeal Rules being inapplicable, cannot be invoked. According to the respondents, the Departmental Enquiry was conducted in all fairness and the petition deserves to be dismissed. ( 6. ) I shall first take up the contention regarding violation of the constitutional guarantee under Article 311 (1) of the Constitution. ( 7. ) AS to the position of a Government Servant, Article 310 of the constitution is pertinent. As pointed out in the decision in Hukumsinghs case, 1979 MPLJ 625 = 1979 JLJ 632 , the principle of doctrine of pleasure contained in the said Article is subject to the guarantee given by Article 311 ibid. The following excerpt from paragraph 10 of this Courts decision in Krishna narayans case, 1985 MPLJ 343 , is pertinent: "except to the extent of guarantee contained in Article 311 ibid, and the provisions of the Rules made under Article 309, the common law right of the Government to terminate the service of its servant continues. The result is that whenever a Government Servant claims that the termination of his services is void and he is entitled to continue in service, he must show the breach of any of these provisions in order to substantiate his claim that the termination of his services is void and ineffective. In the decision in Manager, Government Branch Press vs. D. B. Bellappa, AIR 1979 SC 429 it has been pointed out that the rule of master and servant in its original obsolete form, to bring it in tune with vastly changing socio-economic conditions and mores of the day, has been eroded by judicial decisions and legislation particularly in its application to persons in public employment to whom the constitutional protection of Articles 14, 15, 16 and 311 is available. " ( 8. ) THE relevant portion of Article 311 may usefully be reproduced. " ( 8. ) THE relevant portion of Article 311 may usefully be reproduced. It runs thus : - "311 (1) No person who is member of a Civil Service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State be dismissed or removed by an authority subordinate to that by which he was appointed. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charge against him and given a reasonable opportunity of being heard in respect of those charges. " As to the connotation of the term appointing authority the decision in dinkarraos case, 1976 MPLJ 848 is pertinent. Interpreting Article 311 (1) of the constitution, the Supreme Court in the decision in State of M. P. vs. Shardul singh, 1971 MPLJ 363 has held that the guarantee provided under the aforesaid provision does notinclude within itself a further guarantee that the Departmental enquiry should also be initiated or conducted by the authority named therein. As held in G. N. Ghoshs case, AIR 1963 SC 812 prohibition against demonstration is violative of Article 19 of the Constitution. ( 9. ) LEARNED counsel for the petitioner contended that Article 311 (1) of the constitution concerns itself with the question of subordination to authority actually making the appointment and the fact that the dismissal order passed by the Supdt. of Police was ultimately confirmed by the Deputy Inspector General of Police would not cure the initial defect as the Deputy Inspector General passing an order of dismissal is quite different from confirmation by him of the subordinates order in his capacity as the appellate authority. ( 10. ) IT is clear from plain perusal of the terms, in which Article 311 (1) is worded that the guarantee it gives is that the Civil Servant shall not be removed from service by an authority subordinate to an authority by whom he was appointed. Any infraction of this guarantee would certainly vitiate the order. ( 11. ( 10. ) IT is clear from plain perusal of the terms, in which Article 311 (1) is worded that the guarantee it gives is that the Civil Servant shall not be removed from service by an authority subordinate to an authority by whom he was appointed. Any infraction of this guarantee would certainly vitiate the order. ( 11. ) IN this Courts decision in Bhagwandas vs. State of M. P. and others, 1985 MPLJ 356 , a Sub-Inspector appointed by the Inspector General of Police was dismissed by the Deputy Inspector General, who earlier to the date of the order of dismissal, had, by Notification, been authorised to appoint sub-Inspectors. Relying on the decision in Krishna Kumars case, AIR 1979 SC 1912 this Court held that the order of dismissal having been passed by an authority, who was subordinate to the appointing authority, as on the date of appointment, was not valid. The following excerpt from paragraph 5 and the following two paragraphs from the aforesaid Supreme Court decision may profitably be reproduced : - "whether or not an authority is subordinate in rank to another has to be determined with reference to the state of affairs existing on the date of appointment. It is at that point of time that the constitutional guarantee under Article 311 (1) becomes available to the person holding for example a civil post under the Union Government that he shall not be removed or dismissed by an authority subordinate to that which appointed him. 6. Besides, delegation of the power to make a particular appointment does not enhance or improve the hierarchical status of the delegate. An officer subordinate to another will not become his equal in rank, by reason of his coming to possess some of the powers of that another. The Divisional Engineer in other words does not cease to be subordinate in rank to the Chief Electrical Engineer merely because the latters power to make appointments to certain posts has been delegated to him. 7. Since the appellant was appointed by the Chief Electrical engineer and has been removed from service by an order passed by respondent No. 1 who at any rate was Subordinate in rank to the Chief electrical Engineer on the date of appellants appointment, it must be held that respondent No. 1 had no power to remove the appellant from service. Since the appellant was appointed by the Chief Electrical engineer and has been removed from service by an order passed by respondent No. 1 who at any rate was Subordinate in rank to the Chief electrical Engineer on the date of appellants appointment, it must be held that respondent No. 1 had no power to remove the appellant from service. The order of removal is in patent violation of the provisions of article 311 (1) of the Constitution. " ( 12. ) TESTING the impugned order passed by the Supdt. of Police, Indore on the touchstone of Article 311 (1) as interpreted by the Supreme Court, it has to be held that order is violative of the guarantee in its term and is, therefore, vitiated. The fact that the impugned order passed by the Supdt. of Police was confirmed by the Dy. Inspector General of Police, in appeal, is of little purpose. The appellate order cannot have the effect of investing the intitial order with any validity. ( 13. ) NOW as to the violation of the principles of natural justice. Similar question cropped up in the decision in Krishana Narayans case (supra) and the following excerpt from paragraph 12 thereof may usefully be reproduced : "it must be remembered that Departmental Enquiry is not a matter of empty formality. It is a serious proceeding intended to give the servant concerned a chance to meet the charge and to prove his innocence. It has to be conducted according to relevant statutory rules regulating it and the principles of natural justice. Impartiality and fairness amongst other matters are the essential elements of natural justice. In this connection the following observations in the F. B. decision in Bal Krishna Tiwaris case, 1978 MPLJ 172 may usefully be reproduced. 1. Rules of natural justice are not codified. Principles of natural justice are not statutory. They are fundamental rights of judicial procedure which have been evolved to ensure fair adjudication wherever rights of an individual are affected. Their aim is to prevent miscarriage of justice. Where there is violation of principle of natural justice proceedings can be quashed by Certiorari Acts of public authorities, judicial, quasi-judicial or administrative, can be challenged when the rules of natural justice have been contravened. However, the rules of natural justice are not capable of definition. Their aim is to prevent miscarriage of justice. Where there is violation of principle of natural justice proceedings can be quashed by Certiorari Acts of public authorities, judicial, quasi-judicial or administrative, can be challenged when the rules of natural justice have been contravened. However, the rules of natural justice are not capable of definition. They vary according to the constitution of the statutory body and the statute under which they function. But they depend to a great exent on the facts and circumstances of the case and the framework of the law applicable to it". The following excerpt from pargraph 20 of the decision in A. K. Kraipaks case. AIR 1970 SC 150 is also apposite:- "the aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words, the do not supplant the law of the land, but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past, it was thought that it included just two rules, namely (1) no one shall be a judge in his own cause (nemo debet esse judex in propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem ). Very soon thereafter, a third rule was envisaged and that in that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years, many more subsidiary rules came to be added to the rules of natural justice. . . . . . What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice had been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case". ( 14. Whenever a complaint is made before a Court that some principle of natural justice had been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case". ( 14. ) IT is rightly observed that the role of the accuser or accused or the witness or of the judge cannot be played by one and the same person and it is futile to expect when those roles are combined that the Judge can hold the scales of justice even. In this connection the following observations in the decision in arjun Choubeys case, AIR 1984 SC 1356 are pertinent : - "evidently, respondent No. 3 assessed the weight of his own accusations against the appellant and passed a judgment which is one of the easiest to pass namely that he himself was a truthful person and the appellant a liar. In doing this, respondent No. 3 violated a fundamental principle of natural justice. The main thrust of the charges against the appellant related to his conduct qua respondent No. 3. Therefore it was not open to the latter to sit in judgment over the explanation offered by the appellant and decide that the explanation was untrue. No person can be a judge in his own case and no witness can certify that his own testimony is true. Any one who has a personal stake in an enquiry must keep himself aloof from the conduct of the inquiry, " (emphasis supplied.) ( 15. ) AS already stated it has not been disputed that the agitation giving rise to the Departmental Enquiry was against the action taken by Ashok Patel the supdt. of Police, Indore and slogans were also shouted against him. He not only initiated the Departmental Enquiry but also passed the dismissal order. In the circumstances the present petitioners contention regarding violation of principle of natural justice is also of firm foundation. ( 16. ) NOW as to the controversy concerning common proceedings being without an order for the purpose. of Police, Indore and slogans were also shouted against him. He not only initiated the Departmental Enquiry but also passed the dismissal order. In the circumstances the present petitioners contention regarding violation of principle of natural justice is also of firm foundation. ( 16. ) NOW as to the controversy concerning common proceedings being without an order for the purpose. Rule 14 of the Control and Appeal Rules prescribes the procedure for imposing major penalties including that of dismissal and Rule 18 (1) providing for common proceedings is in these terms : - "where two or more Government servants are concerned in any case the Governor or any other authority competent to impose the penalty of dismissal from service on all such Government servants may make an order directing that the disciplinary action against all of them may be taken in a common proceeding. " (emphasis supplied) ( 17. ) THE question of applicability of the Control and Appeal Rules to the members of the Class III Police Service also arose for consideration in Krishna narayans case (supra ). After consideration of various submissions based on regulations 213, 228 and 232 and Section 7 of the Police Act and Rule 3 (l) (d) of the Control and Appeal Rules and the decisions in Premchands case, 1970 MPLJ 430 and Meva Ramcharans case, AIR 1954 All. 587 this Court held that in the absence of provisions in the Police Regulations regarding common proceedings the provisions of the Control and Appeal Rules would be applicable. ( 18. ) IN the decision in Malvendra Singhs case, 1984 MPWN 234 relying on the decision in State of U. P. vs. Baburam, AIR 1961 SC 751 it has been held that police Regulations are statutory in nature. The Control and Appeal Rules have the same status. In the decision in Ashok Y. Naik vs. The Administrator, Goa, 1979 Service Law Journal 84 it has been held that where there is no order by the competent authority for common proceedings the entire proceedings is vitiated being without jurisdiction irrespective of the question of proof of prejudice which must be implied. The decisions in Tripura Charan vs. State of West bengal, 1979 (1) SLR 878 and Moolchands case, 1982 MPWN 459 are also pertinent. The decisions in Tripura Charan vs. State of West bengal, 1979 (1) SLR 878 and Moolchands case, 1982 MPWN 459 are also pertinent. In the instant case in the absence of any order for common proceedings there is clear violation of Rule 18 of the Control and Appeal Rules and it vitiates the Departmental Enquiry. ( 19. ) NOW I take up the question of delay in filing the petition. ( 20. ) IN the decision in Krishna Narayans case (supra) in para 20 it has been observed as under : - "whether in a given case delay should be condoned or not depends on its facts and circumstances. As pointed out in the decision in indersinghs case, 1981 JLJ 109 it is not that writ under Article 226 is filed within a period of limitation provided for a suit for similar relief cannot be rejected on the grounds of undue delay. As pointed out in the decision in Sudamadevi vs. Commissioner and others, 1983 JLJ Note 40 in every case it would have to be decided on the facts and circumstances whether the petitioner is guilty of laches and that would have to be done without taking into account any specific period as the period of limitation. There may be cases where even short delay may be fatal while there may be cases where even a long delay may not be evidence of laches on the part of the petitioner. In the decision in Arjun choubeys case, AIR 1984 SC 1356 holding that illegality from which the order of dismissal suffered was of a grave and fundamental character it was observed that the alleged habitual misbehaviour on the part of the appellant could not cure or condone it. " ( 21. ) IN the decision in Sengara Singhs case, AIR 1984 SC 1499 , 1100 members of the police force were dismissed on the ground that they had participated in the agitation which was impermissible under the rules governing the discipline in the police force of the State. Some of the dismissed employees filed writ petitions in the High Court but the same were dismissed. Thereafter 1,000 of the dismissed employees were reinstated on the recommendations of the committee constituted to review the cases of dismissed agitators. Those who were weeded out by the Committee filed writ petitions in the High Court. Some of the dismissed employees filed writ petitions in the High Court but the same were dismissed. Thereafter 1,000 of the dismissed employees were reinstated on the recommendations of the committee constituted to review the cases of dismissed agitators. Those who were weeded out by the Committee filed writ petitions in the High Court. The petitions were dismissed by the High Court. In the Civil Appeals presented to it the Supreme Court with reference to Article 14 of the Constitution which guarantees equality held that logically the petitioners must receive the same benefit which those reinstated received in the absence of any distinguishing feature in their case. ( 22. ) IN Baldev Rajs case, AIR 1984 SC 986 with reference to the decision in sengara Singhs case (supra) towards the end of paragraph 3 the Supreme Court expressed itself thus : - "this Court directed reinstatement of the appellants in that case. It appeared that some of the members of the Police Force who could not afford the luxury of rushing to this Court subsequently at intervals approached the Court for similar relief and the same was invariably granted. It was also pointed out to the learned counsel for the respondent State that the State should extend the benefit of the judgment of this Court to all who are similarly situated. However the response is unsatisfactory. This case will illustrate the same. " (emphasis supplied) ( 23. ) IN the aforesaid decision in Baldev Rajs case (supra) pertinent observations regarding the scope of Article 226 of the Constitution in relation to the finding and the penalty imposed have been made in paragraphs 10 and 15 respectively. A penalty disproportionate to the guilt it has been observed is violative of Article 14 of the Constitution of India. ( 24. ) AS the petition can be disposed of on the ground already dealt with it is needless to go into the other contentions raised therein. ( 25. ) IT may be pointed out that several writ petitions by the police personnel subjected to Departmental Enquiries and penalties by Ashok Patel the Supdt. of police, Indore, in connection with the aforesaid agitation already stand allowed by this Court. ( 26. ( 25. ) IT may be pointed out that several writ petitions by the police personnel subjected to Departmental Enquiries and penalties by Ashok Patel the Supdt. of police, Indore, in connection with the aforesaid agitation already stand allowed by this Court. ( 26. ) ON the careful consideration of the facts and circumstances of the case it is clear that the impugned order is violative not only of Rule 18 of the Control and Appeal Rules but in addition to being in utter disregard of the basic principle of natural justice also contravenes Article 311 (1) of the Constitution. In the circumstances condoning the delay the petition does deserve to be allowed. The extraordinary jurisdiction under Article 226 of the Constitution should not be crippled on technical considerations allowing flagrantly unjust orders to stand thereby defeating the very purpose for which the jurisdiction has been conferred. ( 27. ) IN the result the petition is allowed. The impugned orders passed by the respondent Supdt. of Police, Indore and the Deputy Inspector General of Police, indore dismissing the petitioner are set aside. The respondents are directed to let the petitioner continue in his employment uninterrupted granting him all the intervening benefits. Parties shall bear their own costs of this petition. Amount of of security deposit shall be refunded to the petitioner after verification. Petition allowed.