Bhagat Singh v. the State of Punjab

Judgment

State of U. P. Deomati Upadhyaya llidayatullah j. July I. 64 SUPREME COGRT REPORTS [1961] of Criminal Procedure in so fa.r a.a " tha.t section relates to s. 27 of the Indian Evidence Act" a.re intra vires a.nd do not offend Art. 14 of the Oon~titu­ tion. Tho order of the High Court acquitting the respondent is a.lso set a.side a.nd the order of the CourL of Sessions convicting the 11ccused (respondent) under s. 302 of the India.n Pena.I Codo and sentencing him to <lea.th is restored. Appeal allowed. BHAGAT SIKGH THE STATE OF PUNJAB (P. B. GAJENDBAGADKAR, K. N. WANCHOO, M. HIDAYA'rULLAH, K. C. DAS GUPTA, a.nd J. c. SHAH, JJ.) Government Servant-Dismissal-Member of subordinate rank of police forces-Police officer committing offence-Departmental enquiry and dismissal-V a!idity-Dismissal from service without fresh shew cause notice-Legality-Police Act, 186t (V of 186t), ss. 29, 35-Government of India Act, 1935 (z5 <So :z6 Geo. 5, Ch. 42), SS. 240(3), 243.

The appellant, who was employed in the Punjab Police, was found while working as a Police Censor to have detained certain letters illegally and later to have made use of copies and photographs of them for blackmail. lie was consequently revqted to his substantive post of head constable on January 14, 1944· Thereafter an enquiry was started against him by the Superintendent of Police and eventua!Jy he was dismissed frorn service on January 25, 1944· His representations to higher authorities having failed he instituted a suit challenging the legality of the order of dismissal on the grounds, inter alia, (1) thats. 240(3) of the Government of India Act, 1935. had not been complied with, and (2) that as the appellant was alleged to have committed a criminal offence the Superintendent of Police could not hold a departmental enquiry in respect of sucli allegations in view of ss. 29 and 35 of the Police Act, l!lbr. Held : (1) thats.

243 of the Government of India Act, i935, 65 . \v hich was a special provision with regard to the subordinate ranks of police forces in India, excluded the operation of s. 240(3t of the Act to the appellant, who was, therefore, governed by the conditions of service as provided under the Police Regulations, and that the substance of s. 240(3) which was brought into the Police Regulations in September 1946 long after the appellant had been dismissed was not ·applicable to him. Accordingly, he was not entitled to the seco.nd notice, under s. 240(3), giving him a reasonable opportunity of showing cause aga:inst ·_the action proposed t.o be taken in regard to him. North-West Frontier Province v. Swaj Narain Anand [1948] F.C.R. 103 and High Commissioner for India and High Commissioner for Pakistan v. I. M. Lal, [1948] F.C.R. 44, referred .to. . (2) that. the provisions of the Police Act."

1861, relating to offences committed by a police officer above the rank of a constable do not bar .a departmental enquiry .in respect of a matter where it is also possible to prosecute such an officer under that · Act. b1vIL APPELLATE JURISDICTION: Civil Appeal No. 349 of 1957. Appeal by . special leave from the judgment and decree dated November 29, 1954, of the"Punjab High 0ourt in Regular Second Appeal No. 891of1951. Hardayal Hardy and N. N. Keswa"ni, for the appellant. N, S. Bindra and D. Gupta, for the respQndent., .1960 . .Tuly 21. The Judgment of the Court was delivered by Ig6o Bhagat Singh The.State of Punjab WANOHOO J.-This is an: appeal by spedal leave Wanchoo J. against the judgment of the Punjab High Court in a service matter. The b~ief f1J,cts necessary for present purposes a.re that' the lJ.ppellant was appointed ·as a. foot-constable in 1931 in the Punjab Police and.was dismissed on J anua.ry 25, 1944. Shortly before, he was 11.cting as al)

Assistant Sub.Inspector and actually working as a Police Censor. The charge against h.im Was that whi)e he was· working as Police Censor, he detained certain letters illegally and had copies and photo. graphs· ma.de of them and later used these copies and photographs for blackmail. He was .consequently reverted to his substantive post of head constable on 9 Thf Sta!1 'Jj ~l..l'REME COl1HT REPORTS [ 1961 J January 14, 1944. Thereafter on January 21, 1944, an enquiry wits st artcd against him by the Superintendent of Poliec and he was eventually dismissed. He went in appeal to t.hc Deputy Inspector General of Police, which was dismissed. He t.hon went in rev is ion r.o the l nspector General of Police, w hieh also failed. Finally he made several representations ancl memorials to the Punjab Govc>rnrnent but without avail. Consequ!'ntly the prcs!'nt suit was tiled by the appellant in FPbrua.ry 1949.

The plaint as originally filed, iifter wirmting the facts relating tu the appellant's servic<>, merely stated that the charge uf misconduct was brought against the appellant. on account of enmity and that the departmental enquiry made hy the l:'uperintcndont of Police was arbitrary and not according to law, rules and regulations prescrihccl for tho same. Besides this vague general allc>gation, the only specific grievance made out by the appellant in the pl>Lint was that the Superintendent of Police had dismissed him w~thout recording his defenco evidence and without giving him an opportunity to produce thti same. Tho appellant amended the plaint later and added one more grievance, namely, that he had heen appointed by the Doputy Inspector General of Police and could only have hccn dismiHscd by him and not by the Superintendent of Police.

As to the Departmental enquiry, certain further defects therein were pointed out besides the allegation already made that his defenco had not been taken and that he had not been given an opportunity to produce it. Thoso further defects were (i) that he was not permitted to engage counsel, (ii) that he was not allowed full opportunity to croas.- examine the prosecution witnesses, and (iii) that he was not asked by the enquiry officer to state what he had to say in answer to the charge against him and was not permitted to file a written.statement explaining the alleged incriminating circumstances against him. The suit was opposed on behalf of the Punjab Government and among otht>rs their main defence was that the enquiry we.a in accordance with the • 67 Regulations and was not arbitrary. It was also denied that no opportunity had beeri given to the appellant to lead defence evidence or to cross-examine prosectition witnesses or to make his own statement in answer to the charge.

It was admitted that permission was . . refused to engage a counsel; but it was finally averred _ that taking the enquiry a:s a whole there was no such defect in its _conduct as to invalidate it or call for interference by the courts. Three issues, all of a general nature, were framed · by the trial court, namely,_

1Whether. the plaintiff's dismissal is void, illegal, inoperative and wrongful and what is its effect?

2Whether the Civil Courts have jurisdiction to entertain the suit or to go into the <1uestion of the validity of the departmental enquiry ?

3Whether the suit for a declaration lies and is competent and why ? It is unfortunate that the specific points raised by the appellant whatever they were were not made the ·subject-matter of specific ;ssues. However, tlie trial court came to the conclusion that the case of the appellant was governed by s. 240(3) of the Government India Act, 1935; and it was reinforced in this conclusion by the Police· Regulations which, according to it, provided for the same safeguards as were contained in s. 240(3). It .therefore held that as s. 240(3) had not been com plied with, t,he dismissal was yoid and iUegal. As to the other two issues relating to the· jurisdiction of - civil courts they were-depided in favour of the appellant. . _There was an appeal to the District Jndge by the Ptfnja.b Government.

The District Judge' agreed with the conC!usions of the trial court on the applicability of s, 240(3) to the case of the appellant and further - referred to an amendment in the ·Police Regulations whichrequired that before an order of dismissal or reduction 'in rank is made, the officer to__ be punished shall be proquced before the _officer empowered to punish him and shall_ be informed of the _charges Bhagat Singh The State of J>unja~ Wanchoo ]. 11;60 lJh·1;:at S1n1;h The St~itc cf J)U11}U!1 W'co1clioo J. 68 SCPREME COURT REPORTS [1961] proved against him and called upon to show cause whv an order of dismissal or reduction in rank should nut" be passed.

The District J udgo was conscious that this amendment in the Regulations was made in September 1946 long after the dismissal of the appellant and therefore would not apply to the appellant's case; but he overruled this contention on the ground that the rule was merely dodaratory of the law and only removed the ambiguity that might have arisen because of s. 243 of the Government of India Act. He therefore dismissNI the appeal. Then followed a second appeal by the Punjab Government to the High Court.. The High Court held that s. 240(3) did not apply to the case of the appellant and that s. 243 was the governing section. In consequence tho High Court further held that the appellant was not Pntitled to the protection of s. 240(3) and as the amendment to tho Police Regulations which brought in the substance of s. 240(3) therein was made after the dismissal of the· appellant, he could not take advantago of it.

As to tho enquiry, the High Court held that though there might ha.vo been minor procedural defects in tho enquiry it was on the whole substantially in accordance with tho Regulations and principle" of natural justice . and could not therefore be held to be invalid. The High Court pointed out tha.t there was no serious contravention of the Regulations and the witnesses who had appeared wem cross-examined by tho appellant who was also ca.lied upon to produce his defence within 48 hours. He however did not choose to do so a.nd wanted a postponement which was refused and thereafter the Superintend<nt of Police proceeded to dismiss him. Learned counsel for the appellant challenges the correctness of the view taken by thii High Court and three points have been urged on his behalf before us, namely, (I) s. 240(3) of the Government of India Act applied t.o police officers of subordinate rank and there was nothing in A. 243 which took away from such officers the protection of s. 240(3); (2)

Even if the Police Regulations a.lone applied, thero was such violation of the relevant regulations as to vitiate the enquiry 69 proceedings ; and (3) The Superintendent of Police could not hold a departmental enquiry as a criminal offence had been committed; and reliance in this connection was placed on ~s. 29 and 35 of the Police .Act, No. V of 1861. Re. (1). Section 243 of· the Government of India Act appears in Chapter II of Part X dealing with 'Civil Services'. That Chapter begins with s. 240 and subs. (3) thereof provides that no member ofa civil service or holding any civilpost in India shall .be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause again~t the action proposed to be taken in regard to him. Section 243 ·however is in these terms :- "

Notwithstanding anything in the foregoing provisions of this chapter, the conditions of service of the subordinate ranks of the various police forces in India shall be sµch as may be determined by or under the Act relating to those forces respectively." Obviously s. 24.3 was a special provision ..yith regard to subordinate ranks of police forces in India and it is not in dispute that the appell;i.nt belonged to the subordinate rank_s .. Therefore according to s. 243, the conditions of service of the subordfoate ranks are governed by or-under the Acts relating to police forces and s. 240(3) can have no application to them. The non obstante clause of s. 243 makes it clear that so far as the subordinate. rnnks of police forces in India ·are concerned, s. 243 will apply and not the earlier provisions including s. 240(3). We are therefore of opinion that in view of the special provisions in s.

243 relating to the subordinate .ranks of police forces in India (to which the appell~nt undoubtedly belonged), s.'240(3) would have no application._ We may in this connec; tion refer· to the judgment of the Privy Council in North-West Frontier Province v. Suraj Narain Anand (1); where it was held that ·the non obstante clause in s. 243 excluded the operation of s. 240(2) in the case· of subordinate ranks of poli_!Je forces ·in India and thllot conditions of service included the tight of dismissal. • (1) [1948] F.C.R. 103. Bhagat Singh The State of Punjab JVanchoo ]. RhtJ;at .S111gh The .1·ifafc of Pu11;a1, H'anchoo J. 70 SCPREME COCRT REPORTS [1961] That case dealt with s. 240(2) but the sa.mo reasoning would in our opinion apply to s. 240(3). As has already been pointed out by the learned District Judge, tho -Substance of s. 240(3) was brought into the Police Regulations in September 1946 long after the appellant had been dismissed and would therefore not apply to the appellant.

He would therefore not bo entitled to the second notice under s. 240(3) as explained in [. M. Lall's case by the Privy Council: (See High Commissioner for India &: High Commissioner for Pakistan v. ]. M. Lall(')). Kor was such notice necessary under the Police Rogulations·as they existed at the time of the appellant's dismissal. The view taken by the High Court under the circumstances is correct. Re. (2). So far as violation of tho material provisions of r.

16.24 of the Police Regulation" is concerned, we find that only threo specific allegations material for the µnrposc wero sot out by the apµl'llant, namely, (i) that he was not given the cha.nee to defend himself, (ii) that he was not allowed to cross-exa.mino the prosecution witnesses, and (iii) that he was not allowed to explain the circurnst.ancos appearing against him and was. not allowed to file a written statement. lt is enough in this connection to say that he was certainly given a chance to produce defence but did not himself avail of it. It also appears as found by the High Court that the witneRses wero cross-examined by tho appellant at length and on the whole there is nothing to show that he was not allowed to explain the circumstances appearing against him. Wo therefore agree with the High Court that there is no such serious contravention of the l{egulations as to call for interference by the Courts. Re. (3). Reliance in this connection is placed on ss.

29 and 35 of tho Police Act. Section 29 prov ides for penalties for neglect of duty etc. by police officers and lays down the extent of punishment on conviction by a ma.gistrat~. Section 35 defines what magistrate can try a (1) [1948] F.C.R. H· 71 . charge against a police officer above the rank of a constable under the Police Act and such a magistrate has to 'be a )!'irst Class Magistrate. These sections nowhere. exclude departmental enquiry. All that they lay down is that where. an offence punishable under the Police Act is committed by a police officer above the ra,nk of a constable and is to be tried by a court oflaw it has to go before a :First Class Magistrate. That, however, does not mean that no departmentalenqu\iry can be held with respect to a matter where it is afiio possible· to prosecute a police officer under the Police . Act. There is no force in this contention also and it i~ hereby rejected.

The appeal therefore fails and is hereby dismissed) but in the circumstances of this case we pass no ordef' as to costs. Appeal dismissed. M/s. GUDUTHUR BROS. THE INCOME-TAX OFFICER, SPECIAL . CIRCLE, BANGALORE. (S. K. DAS, M. HIDAYATULLAH and J. c. SHAH, JJ.) Income-tax-Assessment-Penalty-Imposition, 'by Income-tax Officer without reason.al!le opportunity given to assessee of being heard-Order set -aside on appeal and refund directed-No express . order of remand-Continuance of proceedings by the Income-tax Officer-Legality-Indian 1ncome-tax Act, z922 (II of .z922), ss. 28 (r)(a) and 28(3). The, appellants failed to file their return within the prescri- . bed time and on a notiCe issued under s. 28(r)(a)' of 'the Indian . Income-tax Act, 1922, to show cause why penalty should not be imposed on them, they filed a written reply. Without affording . them an opportunity of being heard as required by s. 28(3) of the Act the Incoi:ne'tax Officer· imposed a penalty on them.

On . appeal the Appellate Assistant Commissiotier set aside the order . and direded refund of the penalty. Thereafter the Income-tax Officer issued a further notice giving an opportunity to the appel~ !ants of being heard. The appellants objected to this notice and Bhagat Singh The State of Punjab H1anchoo J. r960 July 2i