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2005 DIGILAW 503 (ORI)

State of Orissa v. Markendeswar Nayak

2005-08-30

I.M.QUDDUSI, N.PRUSTY

body2005
JUDGMENT I. M. QUDDUSI, J. — This writ petition has been filed by the State against the judgment and order dated 6.8.1999 passed by the Orissa Administrative Tribunal, Bhubaneswar in O.A. No. 1018 of 1988, by which the original application filed by the opposite party before the Tribunal had been allowed and the impugned order of his removal from service was quashed declaring PMR 825(b) of the Orissa Police Rules given in Orissa Police Manual as ultra vires to Article 311(1) of the Constitution and the same was struck down by the impugned order of the Tribunal. 2. The brief facts of the case are that the opposite party, namely, Markandeswar Nayak was appointed in state police service in the post of Asst. Sub-Inspector of Police (ASI) there¬after he was promoted to the post of Sub-Inspector of Police vide order dated 21.11.1985 passed by the D.I.G. of Police (Admn.). 3. One Kamalini Nayak had made a complaint to the Superin¬tendent of Police, Sundargarh that she was serving as craft teacher at Reserve Police line, Sundargarh in the year 1975 and at that time the opposite party was also posted at Reserve Police office as A.S.I., who posed himself as a Bachelor and developed intimacy with her and ultimately got married in Samaleswari Temple, Sundargarh in the year 1975 and since then both them stayed as husband and wife together at Sundargarh. Out of their wedlock, two sons were born and both were staying with her. Subsequently, she learnt that the opposite party was a married person and had a wife and three children but looking to the social status, she tolerated the false statement of opposite party and allowed his first wife to stay at her house for about four months peacefully. Unfortunately, the opposite party became reluctant to keep Kamalini Nayak with him and started to live with his first wife at Dharuadihi and for the last two years she was staying with her widow mother and looking after her children having no source of income to maintain them. 4. On a complaint made by her, the Superintendent of Police, Sundargarh, conducted a preliminary inquiry and in the inquiry it was found that the opposite party had performed second marriage when his first wife was alive, which was violative of the provisions of the Government Servant Conduct Rules, 1959. 4. On a complaint made by her, the Superintendent of Police, Sundargarh, conducted a preliminary inquiry and in the inquiry it was found that the opposite party had performed second marriage when his first wife was alive, which was violative of the provisions of the Government Servant Conduct Rules, 1959. Thereafter he was charge-sheeted and on the conclusion of the inquiry it was found that the delinquent entered into bigamous marriage by telling lie to Kamalini Nayak that he was a bachelor. The D.l.G. of Police, Western Region, Rourkela issued notice to the opposite party on the basis of the inquiry report to show cause as to why he should not be dismissed from service. Thereaf¬ter the order of removal from service dated 9.9.1986 was passed by the D.I.G. of Police, Western Region, Rourkela removing him from service: The opposite party filed an appeal against the said order dated 9.9.1986 and the appeal was dismissed by the D.G. & I.G. of Police, Cuttack vide his order dated 6.3.1988. Being aggrieved the opposite party filed the O.A. before the Orissa Administrative Tribunal, Bhubaneswar, which was allowed, vide impugned judgment and order as mentioned above. 5. The State has filed the instant writ petition challeng¬ing the order of the Tribunal dated 6.8.1999 passed in O.A. No. 1013 of 1988, inter alia, on the ground that there was no prayer for declaring the provision of Rule 825(b) of the Orissa Police Rules given in the Orissa Police Manual as ultra vires to Article 311 (1) of the Constitution of India. Further as the opposite party was appointed/promoted by the D.I.G. of Police as Sub-Inspector of Police, the D.I.G. becomes his appointing Authority and as such there is no illegality in passing the order of remov¬al from service of the opposite party by the D.I.G. of Police. 6. Considered the impugned judgment and order passed by the Tribunal. Further as the opposite party was appointed/promoted by the D.I.G. of Police as Sub-Inspector of Police, the D.I.G. becomes his appointing Authority and as such there is no illegality in passing the order of remov¬al from service of the opposite party by the D.I.G. of Police. 6. Considered the impugned judgment and order passed by the Tribunal. The Tribunal referred Rule 659 of the Orissa Police Rules and observed that the said Rule provides that the promotion to the rank of S.I. of Police shall be made by the Inspector General of Police and in view of this the appointing authority of the opposite party would be Inspector General of Police and not the D.I.G. of Police and therefore, according to the Tribunal in terms of the Constitutional provision it was the Inspector Gener¬al of Police who is the appointing Authority, was competent to impose the penalty of removal from service of the opposite party, but not the D.I.G. of Police and as such the provision of PMR 825(b) being clearly ultra vires the provision of the Constitu¬tion contained in Article 311, is struck down. The relevant part of the order of the Tribunal is quoted herein below: “It would be seen from the above rule that promotion to the rank of S.I. of Police shall be made by the Inspector General. In this view of the matter, the Inspector General is appointing authority of the S.I. of Police by way of promotion and not the D.I.G. In terms of constitutional provision adverted to above, it was the Inspector General of Police who was competent to impose the penalty of removal from service on the applicant, not the D.I.G. of Police. The provision of PMR 825(b) being clearly ultra vires the provision of the Constitution contained in Arti¬cle 311, is struck down.” 7. Before proceeding further, it is necessary to peruse the provision of Rule 825 (a) and (b) which is quoted herein below: “825 (a) The Inspector-General may award to any police officer below the rank of Deputy Superintendent anyone or more of the punishments in Rule 824. (b) The Deputy Inspector-General may impose on any Police Officer subordinate to him and below the rank of Deputy Superin¬tendent any one or more of the punishments as specified in Rule 824 except dismissal and removal in the case of Reserve Inspector or an Inspector." 8. (b) The Deputy Inspector-General may impose on any Police Officer subordinate to him and below the rank of Deputy Superin¬tendent any one or more of the punishments as specified in Rule 824 except dismissal and removal in the case of Reserve Inspector or an Inspector." 8. Before proceeding further, it is also necessary to consider the provision of Article 311 (1) of the Constitution of India is quoted hereunder : “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 re¬moved by an authority subordinate to that by which he was ap¬pointed.” 9. A bare perusal of the provision of Clause-1 of Article 311 shows that the word “appointing authority” has nowhere been mentioned therein. It has been provided therein that 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 authori¬ty subordinate to that by which he was appointed. It has no concern with “the appointing authority”. The only requirement therein is that no person should be dismissed or removed by an authority subordinate to that (the officer) who had appointed him. In the instant case, the D.I.G. of Police had made promo¬tional order of the opposite party from the post of A.S.I. to the post of S.I. of Police and it is the D.I.G. of Police who has also passed the removal order and therefore it cannot be said that the opposite party was removed from service by an authority subordinate to that by which he was appointed. 10. Now we come to Clause (b) of the Rule 825 of the Orissa Police Rules which provides that the D.I.G. of Police may impose on any police officer subordinate to him and below the rank of Deputy Superintendent any one or more of the punishments as speci¬fied in Rule 824 except dismissal and removal in the case of Reserve Inspector or an Inspector, meaning thereby that the punishment of dismissal or removal, from service mentioned in Rule 824, cannot be imposed by the D.I.G. of Police on an officer of the Reserve Inspector or an Inspector. Therefore, there is no restriction to impose punishment of dismissal or removal from service by the D.I.G. of Police on any S.I. of Police. If it would be seen from the angle of provision of Article 311 (1) of the Constitution, we would find that nowhere it is mentioned in Clause (b) of the Rule 825 that a Police Officer below the rank of Reserve Inspector or Inspector may be dismissed or removed from service by the D.I.G. of Police even if he would have been appointed by his superior officer. The powers in Clause (b) of Rule 825 are only exercisable subject to the provision of Article 311 (1) of the Constitution and following the same it cannot be said that the provision of Clause (b) of Rule 825 is ultra vires to the provision of Article 311(1) of the Constitution. In the instant case, the opposite party was, in fact, appointed by the D.l.G. of Police and was also removed from service by the Officer of the same rank, i.e., D.I.G. of Police and as such, the exer¬cise of powers of removal from service by the D.I.G. of Police is not violating the provision of Article 311(1) of the Constitution and also the delegation of powers made in Clause (b) of Rule 825. 11. In view of the above-mentioned facts and circumstances, the declaration made by the Tribunal that Rule 825(b) of the Orissa Police Rules is ultra vires to Article 311(1) of the Constitution is not sustainable in the eye of law. The quashing of the impugned order of removal from service of the opposite party is also not sustainable and therefore the impugned judgment and order passed by the Tribunal is liable to be quashed and is accordingly quashed. Therefore, the writ petition is allowed. No order as to costs. N. PRUSTY, J. I agree. Petition allowed.