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1987 DIGILAW 162 (RAJ)

Gopi Krishna v. State of Rajasthan

1987-02-06

KANTA BHATNAGAR

body1987
KANTA BHATNAGAR, J.—Petitioner Gopi Krishna, initially appointed as Constable on August 15, 1961 was promoted as Assistant Sub-Inspector in the year 1977. On subsequent promotion he was promoted as Sub Inspector of Police and joined his duties on August 17, 1981. Vide order dated March 5, 1984 the Superintendent of Police Nagaur suspended him on May 19, 1934 and ten charge sheets were served under Rules 16 and 17 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short the Rules" hereinafter) upon him. He was however reinstated from February 11, 1985 under the orders of the Deputy Inspector General of Police, Ajmer (for short the DIGP hereinafter) and was later on transferred from Nagaur to Bhilwara. Inquiries were held in all the charge sheets. In some of them he was exonerated and in some censured or punished. In charge-sheet No. 3961 dated May 19; 1984 inquiry was conducted and petitioner received the communication of the imposition of punishment from the DIGP, Ajmer Range, Ajmer dated November 11,1985 (Ex 6). The petitioner preferred an appeal. The Special Inspector General of Police (Hqrs.) (for short the SIGP hereinafter) vide order dated June 17, 1986 (Ex.7) partly allowed the appeal and the punishment of compulsory retirement imposed by the DIGP was substituted by the punishment of reversion to the lower post for a period of five years. 2. Feeling aggrieved by the aforesaid orders the petitioner has filed the petition in this Court under Article 226 of the Constitution of India. 3. Notice at the admission stage was issued to the respondents. Mr. L.S. Udawat, Additional Government Advocate put in appearance on behalf of the respondents. 4. At the request of the learned counsel for the parties and looking to the nature of the case, the writ petition was heard for final disposal at the admission stage. 5. The action taken against the petitioner in the aforesaid inquiry and the legality and correctness of the orders Exs. 6 and 7 dated November 11, 1985 and June 17, 1986 respectively, have been assailed on a number of grounds such as malafides on the part of Superintendent of Police and the petitioner not being informed whether the inquiry officer had sent any report to the Disciplinary Authority or not. 6 and 7 dated November 11, 1985 and June 17, 1986 respectively, have been assailed on a number of grounds such as malafides on the part of Superintendent of Police and the petitioner not being informed whether the inquiry officer had sent any report to the Disciplinary Authority or not. However, the learned counsel for the petitioner has confined his arguments to the main point raised in the writ petition i.e. the legality and the correctness of the orders Ex. 6 and 7 dated November 11, 1985 and June 17, 1986 respectively, on the ground of lack of jurisdiction of the DIGP and SIGP for imposing punishment on the petitioner and hearing the appeal. 6. Mr. B.L. Purohit, learned counsel for the petitioner strenuously contended that the Disciplinary Authority envisaged by Rule 15 of the Rules with regard to the petitioner was the Inspector General of Police (for short the IGP hereinafter) and therefore, DIGP had no authority to impose the punishment of compulsory retirement on the petitioner. 7. Rule 14 of the Rules provides the nature of the penalty which may be imposed on a Government Servant. It is the Disciplinary Authority who can impose punishment enumerated in that Rule. Disciplinary Authority has been defined in R. 2(c) as under: "R. 2(c) "Disciplinary Authority" in relation to the imposition of a penalty on a Government Servant means the authority competent under these rules to impose on him that penalty". 8. Rule 15 lays down as to who will be the Disciplinary Authority in respect to a particular Government Servant and the relevant portion reads as under: R. 15. Disciplinary Authority-l(l) "In respect of the State Services the Government or the authority specially empowered by the Government in that behalf, in respect of the Subordinate and Ministerial Services, the Head of Department or the authority specially empowered by the Head of the Department with the approval of the Government and in respect of Class IV Services, the Head of the Office shall be the Disciplinary Authority." 9. From this rule it is clear that the Head of the Department is the Disciplinary Authority in respect of the Subordinate and Ministerial Services to the former of which cadre the petitioner belongs. From this rule it is clear that the Head of the Department is the Disciplinary Authority in respect of the Subordinate and Ministerial Services to the former of which cadre the petitioner belongs. The Head of the Department can impose punishment on such Government Servant or the authority specially empowered by the Head of the Department with the approval of the Government can exercise that power. 10. According to the definition laid down in Rule 2(g) the Head of the Department means the authority specified in Schedule A and an authority so declared for purposes of the Rules by an order of the Government. 11. Inspector General of Police is mentioned as Head of the Department in Schedule A Thus the Head of the Department envisaged by R. 15 of the Rules in the case of the petitioner is the Inspector General of Police. 12. The question similar to the present one i.e. who would be the disciplinary authority in respect of Sub-Inspector of Police and whether notice issued by the DIGP and proceedings conducted by him were legal, came for, consideration before this Court in the case of Fateh Singh Lodha Vs. State of Rajasthan (1) and it was held as under : "The post of Sub-Inspector of Police is included in the Subordinate Services and is enumerated in Schedule II annexed to the Rules. According to Rule 15 of the Rules, the Head of the Department or the authority specially empowered by the Head of the Department with the approval of the State Government is entitled to inflict all the penalties specified in Rule 14. The disciplinary authority for the petitioner was, therefore, the Inspector General of Police, who is the Head of the Department." 13. Mr. Purohit stressed that the DIGP had imposed the punishment of compulsory retirement on the petitioner on November 11, 1985 when in the absence of delegation of power by the IGP as envisaged by R. 15 of the Rules, he was not competent to impose that punishment on the petitioner. 14. Mr. Mr. Purohit stressed that the DIGP had imposed the punishment of compulsory retirement on the petitioner on November 11, 1985 when in the absence of delegation of power by the IGP as envisaged by R. 15 of the Rules, he was not competent to impose that punishment on the petitioner. 14. Mr. L.S. Udawat learned Additional Government Advocate does not dispute the position that till November 11, 1985 powers were not delegated by IGP to the DIGP so as to enable him to proceed against the petitioner but his submission is that vide Order dated 21/23.12.1985 (Annexure R/5) the IGP in exercise of the powers conferred under R. 15(1) of the Rules had delegated the disciplinary powers to various Police Officers of the State Police mentioned in Column -4 of the Order and that such delegation was made effective from August 16, 1982. According to Mr. Udawat, that order having thus been made effective retrospectively the order passed by the DIGP on November 11, 1985 was according to law and cannot be challenged as being illegal or unauthorised, 15. Vide Order dated 21/23.12.1985 (Annexure R/5) the IGP had delegated to DIGP the powers to impose all penalties under R. 17(1) of the Rules upon Sub-Inspectors as mentioned at serial number No. 2 of the Order, 16. The pertinent question is whether such an order could have been made retrospectively effective. 17. Mr. Udawat, learned Additional Government Advocate submitted that the circular was meant to be retrospective and therefore, the case of the petitioner is covered by that circular. According to him Rules can be made retrospectively effective. 18. A distinction is to be drawn between administrative/executive order or circular and the rules framed in exercise of the powers given under some Act. Such rules have statutory force and can be made effective retrospectively or prospectively as the circumstances require. Even rules cannot be made effective retrospectively in all cases as is evident from the following principle enunciated by Honble the Supreme Court in the case of the Accountant General vs. S. Doraiswamy (2). "It is settled law that unless a statute conferring the power to make rules provides for the making of rules with retrospective operation, the rules made pursuant to that power can have prospective operation only." 19. The administrative/executive order cannot be made effective retrospective. "It is settled law that unless a statute conferring the power to make rules provides for the making of rules with retrospective operation, the rules made pursuant to that power can have prospective operation only." 19. The administrative/executive order cannot be made effective retrospective. The question of the retrospective effect of an administrative order had been the subject of discussion in a number of cases. 20. In the case of State of Haryana Vs. Dev Dutt (3) such a question came for consideration before the court and it was held administrative order takes effect from the date it is communicated to the person concerned. 21. Similar principle was enunciated in the case of Harbhajan Singh Vs. State of Punjab (4) and it was observed that the administrative/executive order is effective from the date of communication or otherwise published in appropriate manner. 22. The administrative/executive orders and circulars are made to meet with the exigencies of a particular time or situation. They do not fall in the line of Rules and Regulations framed under any Act or the Constitution of India. As such the administrative/executive orders passed at a particular time to meet a particular situation would be effective only prospectively. 23. This being the position, the Order Annexure R/5 dated 21./23.12.1985 could not be made effective retrospectively and for that reason order passed on November 11,1985 (Ex.6) passed by the DIGP cannot be legalised by virtue of delegation of powers subsequent to that date. 24. From the above discussion the conclusion would be that the order dated November 11, 1985 (Ex.6) passed by the DIGP, Ajmer is liable to be set aside. When the initial order itself goes way, the appellate order is bound to go. 25. Consequently, the writ petition is allowed. The Notification dated June 9, 1986 to the extent of its retrospective effect is quashed. As a result of it the Orders Ex.6 dated November 11,1985 passed by the Deputy Inspector General of Police, Ajmer and Ex. 7 dated June 17, 1986 passed by the Special Inspector General of Police are set aside. It is however made clear that this Order will not preclude the State Government from taking any action against the petitioner in accordance with law. In the circumstances of the case, costs are made easy.