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Allahabad High Court · body

2019 DIGILAW 2840 (ALL)

Keshav Prasad Dubey v. State of U. P.

2019-12-20

YOGENDRA KUMAR SRIVASTAVA

body2019
JUDGMENT : 1. Heard Sri Preet Pal Singh Rathore, learned counsel for the petitioner and Sri Mata Prasad, learned Standing Counsel appearing for the State respondents. 2. The present petition has been filed seeking to raise a challenge to the order dated 24.11.2019 passed by the fourth respondent in terms of which the petitioner has been placed under suspension pending initiation of departmental proceedings. 3. The principal contention sought to be raised is that the appointing authority of the petitioner, who is presently working on the post of Inspector, is the Deputy Inspector General of Police and in view thereof the authority competent to pass the order of suspension would be the appointing authority i.e. the Deputy Inspector General of Police and not the Superintendent of Police who has passed the order impugned. Reliance is sought to be placed upon Rule 17(1)(a) of The Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (in short 'the Rules, 1991') in support of the aforesaid contention. 4. Per contra, learned Standing Counsel, on the basis of instructions received, submits that in the instant case the appointing authority i.e. the Deputy Inspector General of Police, Chitrakoot Dham, Range Banda in terms of an order dated 22.11.2019, exercising powers under Rule 17(1)(a) of the Rules, 1991, has authorised the Superintendent of Police, Chitrakoot to exercise the powers of suspension in respect of his subordinate officers including Inspectors and Sub-Inspectors, in cases where departmental proceedings were contemplated against them. 5. It is submitted that the Superintendent of Police, Chitrakoot having been duly authorised by the appointing authority i.e. the Deputy Inspector General of Police by exercising powers under Rule 17(1)(a) the order of suspension cannot be stated to have been passed without authority and the contention raised by the petitioner in this regard is without basis. 6. The question which thus falls for consideration is as to whether the Superintendent of Police could have passed the order of suspension in contemplation of departmental proceedings against an officer of the rank of an Inspector whose appointing authority is the Deputy Inspector General of Police. 7. In order to appreciate the controversy involved the provisions of The Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 may be adverted to. 8. 7. In order to appreciate the controversy involved the provisions of The Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 may be adverted to. 8. The aforementioned Rules, 1991 were made by the Governor in exercise of powers under subsections (2) and (3) of Section 46 read with Sections 2 and 7 of the Police Act, 1861 (Act No.V of 1861) and all other powers enabling him in this behalf and in super session of all existing rules issued in this behalf, for regulating the departmental proceedings, punishment and appeals and Police Officers of the subordinate ranks of the Uttar Pradesh Force. 9. In terms of Section 2 of the Act No.V of 1861, the Rules, 1991 are applicable to all the Police Officers of the subordinate ranks below the rank of Deputy Superintendent of Police. Rule 3(a) defines the appointing authority, as meaning the authority empowered to make appointments to the post which a Police Officer for the time being holds. Under Rule 3(g) the term "Police Officer" is defined to mean a Police Officer of the subordinate rank below the rank of Deputy Superintendent of Police. 10. The power to place under suspension a Police Officer of the subordinate rank against whose conduct an enquiry is contemplated, or is pending, is provided for under Rule 17 of the Rules, 1991. For ease of reference, Rule 17(1)(a) referred to above, is being extracted below: "17. Suspension.—(1)(a) A Police Officer against whose conduct an enquiry is contemplated, or is proceeding, may be placed under suspension pending the conclusion of the enquiry in the discretion of the appointing authority or by any other authority not below the rank of Superintendent of Police, authorised by him in this behalf." 11. A plain reading of the aforementioned Rule 17(1)(a) shows that a Police Officer against whose conduct an enquiry is contemplated, or is proceeding, may be placed under suspension pending conclusion of enquiry in the discretion of the appointing authority or by any other authority not below the rank of Superintendent of Police, authorised by him in this behalf. 12. It therefore follows that the power to place a Police Officer of a subordinate rank under suspension in a case where an enquiry is contemplated, or is proceeding against his conduct, is to be exercised by the appointing authority in his discretion. 12. It therefore follows that the power to place a Police Officer of a subordinate rank under suspension in a case where an enquiry is contemplated, or is proceeding against his conduct, is to be exercised by the appointing authority in his discretion. The Rule further makes a provision that the aforementioned power of suspension which is to be exercised by the appointing authority may also be exercised by any other authority not below the rank of Superintendent of Police who is authorised by the appointing authority in this behalf. 13. It is thus clear that Rule 17(1)(a), apart from conferring the power of suspension, in the case of a Police Officer of a subordinate rank against whose conduct an enquiry is contemplated or is pending, upon the appointing authority, also empowers the appointing authority to grant authorisation for exercising the aforesaid power of suspension by any other authority not below the rank of Superintendent of Police. 14. The scope of delegation of a discretionary administrative power entrusted by a statute came up for consideration in the case of Barium Chemicals Ltd. & Anr. Vs. Company Law Board & Ors., AIR 1967 SC 295 and it was held that a discretion conferred by a statute on any authority is prima facie intended to be exercised by the authority on which the statute has conferred it and by no other authority, but this intention may be negatived by any contrary indications found in the language, scope or object of the statute. Referring to Crawford on The Construction of Statutes, The Construction of Statutes by Earl T. Crawford, Edn. 1940, Art. 195, p.335, the observations made in the judgment are as follows: “36. As a general rule, whatever a person has power to do himself, he may do by means of an agent. This broad rule is limited by the operation of the principle that a delegated authority cannot be redelegate, delegatus non potest delegare. The naming of a delegate to do an act involving a discretion indicates that the delegate was selected because of his peculiar skill and the confidence reposed in him, and there is a presumption that he is required to do the act himself and cannot redelegate his authority. The naming of a delegate to do an act involving a discretion indicates that the delegate was selected because of his peculiar skill and the confidence reposed in him, and there is a presumption that he is required to do the act himself and cannot redelegate his authority. As a general rule, "if the statute directs that certain acts shall be done in a specified manner or by certain persons, their performance in any other manner than that specified or by any other person than one of those name is impliedly prohibited". See Crawford on statutory Construction, 1940 Edn., Art. 195, p. 335. Normally, a discretion entrusted by Parliament to an administrative organ must be exercised by that organ itself. If a statute entrusts an administrative function involving the exercise of a discretion to a Board consisting of two or more persons it is to be presumed that each member of the Board should exercise his individual judgment on the matter and all the members of the Board should act together and arrive at a joint decision. Prima facie, the Board must act as a whole and cannot delegate its function to one of its members. x x x x x 38. But the maxim "delegatus non potest delegare" must not be pushed too far. The maxim does not embody a rule of law. It indicates a rule of construction of a statute or other instrument conferring an authority. Prima facie, a discretion conferred by a statute, on any authority is intended to be exercised by that authority, and. by no other. But the intention may be negatived by any contrary indications in the language, scope or object of the statute. The construction that would best achieve the purpose and object of the statute should be adopted.” 15. The principle that the maxim delegatus non potest delegare, may be subject to any contrary indications provided in the language of the statute has been stated in De Smith's Judicial Review of Administrative Action, De Smith's Judicial Review of Administrative Action, 4th Edn. by J.M. Evans, wherein referring to the article “Delegatus non potest delegare” by John Willis, (1943) 21 Can. Bar Rev. by J.M. Evans, wherein referring to the article “Delegatus non potest delegare” by John Willis, (1943) 21 Can. Bar Rev. 257, 259, it was stated as follows: “The maxim delegatus non potest delegare does not enunciate a rule that knows no exception; it is a rule of construction to the effect that “a discretion conferred by statute is prima facie intended to be exercised by the authority on which the statute has conferred it and by no other authority, but this intention may be negatived by any contrary indications found in the language, scope or object of the statute”.” 16. The applicability of the principle that a discretionary administrative power should be exercised by the authority upon whom it is conferred in the present day administrative set up which has seen an enormous rise in the nature of administrative activities was considered in the case of Sahni Silk Mills (P.) Ltd. & Anr. Vs. Employees' State Insurance Corporation, (1994) 5 SCC 346 and it was held that delegation is authorised either expressly or impliedly in many statutes granting liberty to a public authority to employ agents to exercise its powers. It has been stated in the judgment as follows: “5. The courts are normally rigorous in requiring the power to be exercised by the persons or the bodies authorised by the statutes. It is essential that the delegated power should be exercised by the authority upon whom it is conferred and by no one else. At the same time, in the present administrative setup extreme judicial aversion to delegation cannot be carried to an extreme. A public authority is at liberty to employ agents to exercise its powers. That is why in many statutes, delegation is authorised either expressly or impliedly. Due to the enormous rise in the nature of the activities to be handled by statutory authorities, the maxim delegatus non potest delegare is not being applied specially when there is question of exercise of administrative discretionary power. 6. By now it is almost settled that the legislature can permit any statutory authority to delegate its power to any other authority, of course, after the policy has been indicated in the statute itself within the framework of which such delegatee is to exercise the power...” 17. 6. By now it is almost settled that the legislature can permit any statutory authority to delegate its power to any other authority, of course, after the policy has been indicated in the statute itself within the framework of which such delegatee is to exercise the power...” 17. The aforementioned proposition that where a statute prescribes a particular body to exercise a power it must be exercised by that body alone and no other unless it is delegated was reiterated in the judgment in the case of Marathwada University Vs. Seshrao Balwant Rao Chavan, (1989) 3 SCC 132 wherein referring to Halsbury's Laws of England, 4th Edn., Vol.1, para 32 Halsbury's Laws of England, 4th Edn., Vol.1, para 32, it was stated as follows: “20. ...It is a settled principle that when the Act prescribes a particular body to exercise a power, it must be exercised only by that body. It cannot be exercised by others unless it is delegated. The law must also provide for such delegation. Halsbury's Laws of England (Vol.I, 4th Edn. para 32) summarises these principles as follows: "32. Sub-delegation of powers.—In accordance with the maxim delegatus non potest delegare, a statutory power must be exercised only by the body or officer in whom it has been confided, unless sub-delegation of the power is authorised by express words or necessary implication. There is a strong presumption against construing a grant of legislative, judicial or disciplinary power as impliedly authorising sub-delegation; and the same may be said of any power to the exercise of which the designated body should address its own mind." 18. It is thus an accepted principle of law that a discretionary power must, in general, be exercised only by the authority upon which it has been conferred. The power having been conferred under a statutory provision upon an authority to be exercised upon his individual judgment and discretion the same must be wielded only by the said authority upon whom the power has been conferred and the discretion should be retained unhampered. 19. An element which is essential to the lawful exercise of power is that it should be exercised by the authority upon whom it is conferred and by no one else. 19. An element which is essential to the lawful exercise of power is that it should be exercised by the authority upon whom it is conferred and by no one else. The requirement of exercise of the power by the authority upon whom the power is conferred is, in general, insisted rigorously by the courts and any action taken by any agent or delegate would not be permissible. 20. The exception to the aforementioned principle of the inalienable discretion in the exercise of a statutory power would be in a case where the authority on whom the power is originally conferred by a statute is expressly authorised in terms thereof to delegate the said power by grant of authorisation to some other authority. This principle applies to delegation of all forms of powers, including administrative powers, conferred in terms of a statutory provision. 21. Delegation of an administrative power is permissible when the relevant law permits the same and statutes frequently make a provision enabling the authority on which powers are conferred in the first instance to delegate the same to subordinate officers. 22. An order of delegate, when delegation is made as authorised by the statute, is to be treated for all intents and purposes as an order of the authority itself. 23. The Rules, 1991 are of a statutory nature, and as per the provisions under Rule 17(1)(a) thereof the power to place under suspension a Police Officer of a subordinate rank against whose conduct an enquiry is contemplated, or is pending, having been conferred on the appointing authority, in his discretion, the same is normally to be exercised by the said authority itself. However, the Rule expressly permits the exercise of the aforementioned power of suspension by any other authority not below the rank of Superintendent of Police who has been authorised by the appointing authority in this behalf, and in view thereof the exercise of the power by the authority who has been granted authorisation by the appointing authority would also be a valid exercise of power conferred under the Rules, 1991. 24. 24. In the instant case the power of authorisation contemplated under Rule 17(1)(a) having duly been exercised by the appointing authority i.e. the Deputy Inspector General of Police and the necessary authorisation having been issued to the Superintendent of Police for exercising the aforesaid power, the order of suspension which has been passed by the Superintendent of Police, Chitrakoot cannot be said to suffer from want of authority and therefore cannot be assailed on this ground. 25. Counsel for the petitioner, at this stage, confines his prayer to a direction to the respondent authorities that the departmental proceedings which are contemplated pursuant to the order of suspension may be concluded expeditiously. He further undertakes that the petitioner would cooperate with the departmental proceedings. 26. Learned Standing Counsel appearing for the State respondents, on the basis of his instructions, states that the departmental proceedings in accordance with the procedure under Rule 14(1) have already been initiated and the same would be completed as per the Rules, 1991. 27. Having regard to the facts of the case the writ petition is disposed of with an observation that the respondent authorities would proceed with the matter and endeavour to conclude the departmental proceedings expeditiously, preferably within a period of six months from the date of presentation of a certified copy of this order, provided that the petitioner cooperates with proceedings.