BHAGWANDAS AHIRWAR v. STATE OF M P — 1985 DIGILAW 256 (MP)

JUDGMENT : ( 1. ) THIS order shall also govern the disposal of Misc. Petition no. 252 of 1981 (Mahesh Kumar Sharma v. State of M. P. and another) filed on 7-8-1981 as they involve common question. ( 2. ) BY the petition under Article 226 of the Constitution of India the petitioner Bhagwandas seeks quashing of the order dated 25-1-1983 passed by the Deputy Inspector General of Police, Indore in a Departmental enquiry whereby he has been compulsorily retired from service and of the appellate order dated 25-6-1983 passed by the Inspector General of Police, Bhopal. ( 3. ) IT is not in dispute that the said petitioner was, in 1956, appointed by the Inspector General of Police as Sub-Inspector of Police The Additional Superintendent of Police, Indore on 7-21981 inflicted on the petitioner the punishment of censure. Subsequently on 27-3-1982 the Deputy inspector General of Police, Indore acting under Regulation 270 of the police Regulations revising that order directed that a Departmental Enquiry be held against the petitioner. Ultimately charge-sheet dated 2-4-1982 was served on him and by the impugned order passed by the Deputy Inspector general of Police he was compulsorily retired from service. ( 4. ) THE petitioner went up in appeal and the Inspector General of police by his order dated 25-6-1983 dismissed the same. ( 5. ) THE other petitioner Mahesa Kumar was appointed as Sub-Inspector of Police under order dated 3-1-1962 of the Chief Commissioner, bhopal issued by Inspector General of Police, Bhopal on 18-1-1962. In the Departmental Enquiry held against him, he having been found guilty, the Deputy Inspector General of Police, Indore by his ultimate order dated 18-6-1978 dismissed him from service. The appeal preferred against that order has been dismissed by the Inspector General of Police, Bhopal by his order dated 23-11-1978. The Home Department of the Government of M. P. on 29-7-1980 rejected his representation dated 6-2-1979 and his prayer for justice made to the Chief Minister evoked no response and hence the writ to the High Court. ( 6. ) THE petitioner Bhagwandass main contention is that as he was appointed by the Inspector General of Police the impugned order passed by the Deputy Inspector General of Police, an officer admittedly subordinate to the former, is violative of the guarantee under Article 311 (1) of the constitution and has to be struck down. ( 6. ) THE petitioner Bhagwandass main contention is that as he was appointed by the Inspector General of Police the impugned order passed by the Deputy Inspector General of Police, an officer admittedly subordinate to the former, is violative of the guarantee under Article 311 (1) of the constitution and has to be struck down. It has also been contended that in view of Rule 29 of the M. P. Civil Services (Classification, Control and appeal) Rules, 1966 (for short the Control and Appeal Rules) the Deputy Inspector General could not have revised the order after a lapse of more than six months. It is further contended that the enquiry against him was not fair. ( 7. ) THE petitioner Mahesh Kumars main contention is the same as that of Bhagwandas that his appointment having been made by higher authority the impugned order by the Deputy Inspector General of Police is violative of the constitutional guarantee under Article 311 (1) of the constitution. It was also contended that there was no reasonable opportunity of hearing before the order was passed and that it is perverse. ( 8. ) THE respondents submissions in their returns are that under the notification No. 5399-II-B (ii) dated 14th November, 1960, published in the madhya Pradesh Gazette Part I dated 2-12-1960 at page 1820, the Deputy inspector General of Police was competent to appoint Sub- Inspectors and, therefore, neither of the impugned order of dismissal is violative of the constitutional guarantee referred to above, more so when the Inspector general has maintained the same in appeal. In relation to the writ by bhagwandas it was next contended that as revision has been expressly provided in the Police Regulations, provisions as to the limitation for the same cannot be imported from the Control and Appeal Rules. ( 9. ) THE learned counsel for the petitioners placing reliance on the decision in Krishna Kumar v. Divisional A. E. E. , C. Rly. , AIR 1979 SC 1912 , contended that the competency of the Deputy Inspector General of Police to appoint Sub-Inspector before or after the petitioners appointment is not decisive on the question of the guarantee under Article 311 (1) of the Constitution which concerns itself with the question of subordination to the authority actually making the appointment. , AIR 1979 SC 1912 , contended that the competency of the Deputy Inspector General of Police to appoint Sub-Inspector before or after the petitioners appointment is not decisive on the question of the guarantee under Article 311 (1) of the Constitution which concerns itself with the question of subordination to the authority actually making the appointment. Relying on the decision in Mysore S. R. T. Corporation v. Mirja Khasim AIR 1977 S C 749. it was further contended that the fact that the impugned order by the Deputy Inspector General was ultimately confirmed by the Inspector General of Police would not cure the initial defect as the inspector General himself passing an order of dismissal is quite different from confirmation by him of an order passed by his subordinate officer. ( 10. ) THE learned counsel appearing for the respondents contends that the guarantee under Article 311 (1) of the Constitution has to be read as referring only to the Authority competent to make appointment as the power to dismiss ordinarily goes with that competency and where the dismissal is by an authority competent to make appointment to the post held by the aggrieved Government servant, he cannot successfully complain of violation of the guarantee under Article 311 (1 ). In support of his submission he placed reliance on this Courts order passed by the Division Bench in Inspector General of Police, M. P. v. Haribhau Borkar, Misc Civil Case No 309 of 1979 dated 18-8-1980 (Indore Bench) in which reliance has been placed on the decision in Dinkarrao v. State of M. P. 1966 MPLJ 848. ( 11. ) IN the decision in Haribhau Borkars case (supra) repelling the contention that the aggrieved Government servant was initially appointed by the Inspector General of Police and, therefore, the dismissal order by deputy Inspector General of Police was violative of Article 311 (1) of the constitution, it was observed as under :- "the contention also has no merit. It is settled that the appointing authority at the time when impugned order is passed is the competent authority for that purpose and not the appointing authority at any time earlier. It is settled that the appointing authority at the time when impugned order is passed is the competent authority for that purpose and not the appointing authority at any time earlier. At the time when the order of dismissal was passed in the present case, it was undoubtedly the Deputy Inspector General of Police, who was also the appointing authority and, therefore, there is no violation of clause (1) of Article 311 of the Constitution as claimed by shri Choudhary. " (Emphasis supplied) ( 12. ) IN the decision in Dinkarraos case (supra) it has been observed that where at the time of integration of the Princely States with the test of india, persons serving in the Princely States were absorbed in the services of the relative new States which came into existence as a result of the integration, the authority by whom such persons were appointed to the integrated services or who would have been competent to make an appointment in case there was actual fresh appointment must be deemed to be the appointing authority competent to dismiss or remove such persons. ( 13. ) AS to the law as laid down on the subject by the Supreme Court an excerpt from paragraph 5 of the decision in Krishna Kumars case (supra)and the following two paragraphs may usefully be reproduced. They run thus; "whether or not an authority is sub-ordinate 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 sub-ordinate 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. 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 sub-ordinate 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. " (emphasis supplied) ( 14. ) IN the decision in Mysore S. R. T. Corporations case (supra)with reference to the provisions of the States Reorganisation Act, 1956 and article 311 (1) of the Constitution, the following pertinent observations occur in paragraph 12 :- "in the instant cases, the first respondents were undeniably appointed by the Superintendent of the Traffic Department of the erstwhile State of Hyderabad who was the head of the Road Transport Department of that State. On the coming into force of the States Reorganisation Act, 1956 on November 1, 1956, they were to be deemed by virtue of subsection (1) of section 116 of the States Reorganisation Act to have been appointed with effect from that date to the posts held by them on that date by the appropriate authority in the new State of Mysore which could not in the context mean an authority other than the one equivalent to or co-ordinate in rank with the aforesaid authority in the erstwhile State of Hyderabad. The authority equivalent to or co-ordinate in rank with the aforesaid authority on the relevant date being the general Manager of the Mysore Government Road Transport Department according to the appellants own admission as contained in answer to the aforesaid interrogatories served on them by the first respondents, he alone could be considered to be the competent authority in terms of sub-section (2) of section 116 of the States Reorganisation Act, 1956. The fact that there was no post of Superintendent of the Traffic in the mysore Government Road Transport Department in the State of Mysore is of no consequence. The fact that there was no post of Superintendent of the Traffic in the mysore Government Road Transport Department in the State of Mysore is of no consequence. Such being the position, the first respondents could not have been dismissed from service by an authority lower or subordinate in rank to the General Manager of the Transport Department as it would tantamount to deprivation of the guarantee enshrined in Article 311 of the Constitution read with section 115 (7) of the States Reorganisation Act, 1956. " (emphasis supplied) ( 15. ) AS pointed out in the decision in Mysore S. R. T. Corporations case (supra) Constitution in the transcedental law and according to Article 141 of the Constitution the law declared by the Supreme Court shall be binding on all Courts within the territory of India. The aforesaid Supreme court decision and the one in Krishna Kumars case (supra) were, it appears not brought to the notice of the Court while deciding the Misc. Civil Case No. 309 of 1979 (supra ). ( 16. ) AS already pointed out, in the instant case it is not in dispute that the petitioner Bhagwandas was appointed by the Inspector General of police. Though the Deputy Inspector General of Police is competent to appoint a Sub-Inspector and also to dismiss him, the fact remains that he is a sub-ordinate to the Inspector General of Police. At this stage reference to the express terms in which Article 311 (1) is worded is pertinent. It reads thus :- "no person who is a 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 shall be dismissed or removed by an authority subordinate to that by which he was appointed. " It is clear from its plain perusal that the guarantee it gives is that a civil servant shall not be removed from service by an authority sub-ordinate to the authority by whom he was appointed. Any infraction of this guarantee in terms would certainly vitiate the order. ( 17. " It is clear from its plain perusal that the guarantee it gives is that a civil servant shall not be removed from service by an authority sub-ordinate to the authority by whom he was appointed. Any infraction of this guarantee in terms would certainly vitiate the order. ( 17. ) TESTING the impugned orders passed by the Deputy Inspector general of Police on the touchstone of Article 311 (1) as interpreted in the aforesaid two Supreme Court decisions, it has to be held that they are violative of the guarantee thereunder in its terms and are, therefore, vitiated. In both the petitions the answer to the crucial question as to whether the petitioners had been dismissed by an authority subordinate to that by which they were appointed has of necessity to be rendered in the affirmative and, therefore, without reference to any other provision elsewhere in any Act, regulation or Rule it has to be held that the impugned orders being violative of the constitutional guarantee under Article 311 (1) of the Constitution suffer from an indelible stamp of infirmity and cannot be allowed to stand. The fact that the impugned orders passed by the Deputy Inspector General were confirmed by the Inspector General in appeals is in view of the weighty pronouncement of the Supreme Court referred to in paragraph 8 above little to purpose as it cannot have the effect of investing the initially void orders with any validity. ( 18. ) AS the petitions can be disposed of on the short ground of violation of the constitutional guarantee under Article 311 (1) of the Constitution, it is needless to go into the merits of the other contentions. ( 19. ) IN the result both the petitions are allowed. The impugned order dated 25-1-1983 (in Misc. Petition No. 388 of 1983) and the appellate order dated 25-8-1983 are both set aside and so also the impugned order dated 12-6-1978 and the appellate order dated 23-11-1978 (in Misc. Petition no. 303 of 1981 ). The concerned respondents are directed to let the petitioners continue in their employment uninterrupted granting them all the intervening benefits. The parties shall bear the costs of their respective petition as incurred. The amount of security deposit be refunded to the petitioners. Petitions allowed.