G. Mehrotra, C.J.
1. These two rules which arise out of petitions under Article 226 of the Constitution, may be disposed of by one common judgment.
2. In Civil Rule No. 99 of 1960 the petitioner Jatindra. Mohan Goswami was selected for appointment as Probationary Sub-Inspector of Police on the 2nd February 1955. The petitioner had his. training in the Police Training College, Dergaon. and thereafter on the 8th February 1955 he was informed that he had been appointed a Probationary Sub-Inspector of Police in Assam. On completion of his training by an order dated the 5th March 1956, passed by the Inspector General of Police the petitioner was posted in the District of Cachar on probation for two years with effect from the 15th February, 1956. Thereafter the petitioner was. transferred to United Khasi-Jaintia Hills District as a probationary Sub-Inspector of Police. and was posted there to act as Traffic Sub-Inspector of Police since September, 1958.
On the 28th November 1958 in the morning when the petitioner was proceeding to Barpathar accompanied by Assistant Sub-Inspector of Police Sushil Ranjan Sen and constable Nanda Raj Chutia to bring a requisitioned vehicle No. ASA 1990, near the Umshirpy Bridge he found the vehicle No. ASA 2300 coming towards the town with a truck-load of coal, 23 goats and two passengers excluding the driver and the handyman. The permit and the license of the vehicle were checked by the petitioner and the name of the driver and the number of the vehicle was noted down by the petitioner in his diary. The names of the passengers travelling in the said vehicle were also noted down by him. After that the petitioner proceeded to Barpathar to attend to his duties. It appears that one Mr. Howell Jaid Nongsiej had complained against the petitioner and his party for having demanded bribe from the driver to Sri J. Mawrah, Deputy Superintendent of Police.
It was alleged that the petitioner had taken one camera and two wrist-watches which are said to have been recovered from the members of his party. The Deputy Superintendent of Police Sri J. Mawrah. on the complaint by Mr. Howell made certain preliminary inquiries and reported the matter to the Superintendent of Police, Shillong, who by his order dated the 28th November 1957 placed the petitioner under suspension. The petitioner Sushil Ranjan Sen was also put under suspension. The Superintendent of Police asked the Deputy Superintendent of Police to take up proceedings for dismissal against the petitioner and the two others, namely Assistant Sub-Inspector of Police and the Constable. The Deputy Superintendent of Police was asked by the order to give his finding and submit the report to the Superintendent of Police for necessary orders.
By a memo dated the 29th November 1957 the petitioner was asked by the Deputy Superintendent of Police to submit his explanation In writing within 15 days from the receipt of the said memo and further was asked to show cause why he should not be dismissed from service for committing the offence shown in the charge-sheet. On the receipt of the aforesaid charge-sheet the petitioner by an application dated the 6th December 1957 prayed for copies of documents mentioned in the said petition to enable him to explain the charges. The Deputy Superintendent of Police Mr. Hazarika who is impleaded as opposite party No. 2 to the present petition, by his order dated the 15th December 1957 allowed the petitioner to take copies of only the documents applied for and used as exhibits in the proceedings against him at his own cost from the appropriate file kept with the Reader Sub-Inspector in his presence during office hours within three days from the receipt of this order and the petitioner got copies of the seizure lists and a zimmanama in the proceedings filed.
By a letter dated the 21st December 1957 the petitioner was asked by opposite party No. 2 to submit his explanation so as to reach, him on the date already given to him by the Deputy Superintendent of police Mr. J. Mawrah opposite party No. 3, failing which an extra charge of disobedience of order would be framed against film. It appears that in the meantime on the 13th December 1957 the opposite party No. 3 had submitted a report to the Superintendent of Police stating therein that he was a witness in the proceeding against the petitioner as he had conducted the preliminary inquiry resulting in the recovery of the articles. So some other officer should be authorised to draw up the proceedings against the petitioner. The Superintendent of Police on the same date ordered opposite party No. 2 to take up the proceedings against the petitioner on the ground that the respondent No. 3 was busy in some other important work. There is no mention in this order of the fact that the opposite party No. 3 was not qualified to inquire into the matter as he was to appear as a witness.
3. The petitioner thereafter submitted his explanation on the 23rd December 1957 to the charges brought against him and set out in the letter dated the 29th November 1957. By an order dated the 10th March 1958 passed by the opposite party No. 2 Mr. Hazarika, the petitioner was asked to submit explanations in respect of charges mentioned therein as to why he should not be dismisses from service forthwith and he was asked whether he desired to be heard la person and desired to examine witnesses on his defence. On the 15th March 1958 the petitioner filed an application before the opposite party No. 2 contending that he applied for copies of the deposition of the witnesses examined on the 11th March 1958 to enable him to prepare his explanation on the basis of the said evidence and as no copies were supplied to him, he was seriously prejudiced.
By a letter dated the 17th March 1958 opposite party No. 2 rejected the prayer for the copies of the deposition of witnesses prayed for by the petitioner and asked him to submit his explanation on or before the date already fixed in the memo dated the 10th March 1958. By another letter the 16th April 1958 issued by opposite party No. 2 the petitioner was asked to submit explanation in writing by the 22nd April 1958 as to why he should not be dismissed from the force. Along with the said Memo a copy of the findings of the proceedings together with the order of the Superintendent of Police passed thereon was enclosed.
By another letter dated the 18th April 1958 the petitioner was informed that the last date for showing cause had been extended up to the 20th April 1958. On the 22nd April 1958 the petitioner filed an application before the Superintendent of Police contending that some vital sentences in the statements of some of the witnesses in the proceedings as recorded, were subsequently penned through or over-written with different ink, which threw some suspicion on the correctness of the record of the proceedings. On the 26th April 1958 the petitioner submitted explanations to the Superintendent of Police who is arrayed as opposite party No. 1 and by an order dated the 5th May 1958 the Superintendent of Police removed the petitioner from service from the date of the order.
4. An appeal was preferred by the petitioner against the order of the Superintendent of Police to the Deputy Inspector General of Police, Assam through the Superintendent of Police. The petitioner filed several applications through the authorities praying for early disposal of the appeal. By an order dated the 19th May 1960 the opposite party No. 4 the Deputy Superintendent of Police, Assam rejected the appeal. This order was communicated to the petitioner on the 26th May 1960 and against the aforesaid order, the present petition has been filed praying for a writ of certiorari quashing the orders passed by the Superintendent of Police and the Deputy Inspector General of Police dismissing the petitioner from service.
5. The petitioner has canvassed a number of points before us. He has firstly contended that the charge against the petitioner being or, a cognizable offence, he could not be departmentally dealt with unless he was tried in a court of law. Secondly it is urged that no reasonable opportunity was given to the petitioner to meet the charges and the proceedings are violative of the provisions of Article 311(2) of the Constitution. Thirdly it is contended chat the proceedings were illegally initiated by the Deputy Superintendent of Police Sri J. Mawrah inasmuch as he was a witness and the proceedings ultimately terminating in the finding by opposite party No. 2 were thus illegal.
6. The contention of the petitioner that he could not be dismissed for a charge of a cognisable offence without trial has no substance. Section 7 of the Police Act provides that-
Subject to provisions of Article 311 of the Constitution and to such rules as the State Government may from time to time make under this Act,...the District Superintendent of Police may at any time dismiss, suspend or reduce any police officer of the subordinate ranks whom they shall think remiss or negligent in the discharge of his duty or unfit for the same;
or may award any one or more of the following punishments to any police officer of the subordinate ranks who shall discharge his duty in a careless or negligent manner, or who by any act of his own shall render himself unfit for the discharge thereof,...
I have quoted above only the relevant portion of the section. The punishments enumerated in the section are minor punishments. This section is subject only to the provisions of Article 311 of the Constitution and the rules framed by the State Government from time to time. No rules framed by the Governor of Assam have been pointed out to us which will go to show that a police officer charged of a cognizable offence could not be departmentally tried and dealt with unless he has been prosecuted by a proper court.
Section 7 gives power to the Superintendent of Police to dismiss, suspend or reduce any police officer who is found to be unfit for the same. If a police officer is charged of a cognisable offence and the charges are proved against him, he is unfit for the post of the police officer and as such he can be dismissed under Section 7 on such a departmental inquiry. There is no Question of any trial before a departmental action is taken. Rule 66(III) Part III of the Assam police Manual provides that no order of major punishment shall be passed on a member of the service (other than an order based on facts which have led to his conviction in 9 criminal court) unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself.
This rule also shows that the procedure to be followed in a departmental trial in cases where the petitioner has not already been convicted by a criminal court, is different from the one in which the major punishment is imposed on him on his conviction in a criminal court. This rule however, does not provide that the major punishment cannot be awarded in cases where a police officer is charged with a cognisable offence, unless he has been tried by a competent court. I do not find anything in the provisions of the Police Act to justify such a contention.
Reliance is placed on the following passage in the case of Bhugiram Hazarika v. Supdt. of Police, Sibsagar AIR 1954 Assam 18 at p. 21:
It would be useful to refer to some of the relevant rules in order to appreciate the contention of the petitioner. The charges show that they related to offences under Section 29 of the Police Act read with Section 342/161, Penal Code for illegal detention and for demanding illegal gratification. These offences were triable by a Magistrate, and a departmental enquiry in regard to such offences was not called for unless the petitioner had been duly tried and found guilty or otherwise, in a Court of law.
These observations are in the nature of obiter and this decision does not give any reason as to why the petitioner cannot be departmentally dealt with unless he has been tried by a Magistrate. In this case the decision proceeds on the assumption that such offences could form the subject matter of a departmental proceeding.
There is nothing in Section 29 which prohibits a departmental inquiry on a charge of a cognisable offence unless the police officer has been tried by a court of law. These observations only lay down that ordinarily a person if charged with a cognisable offence, should first be tried by a court of law and his conviction should then be a ground for taking departmental action. But the observations do not go to the extent of laying down that there can be no departmental inquiry on a charge of cognisable offence unless the police officer has been tried by a court of Magistrate.
7. The events leading to the order of dismissal of the petitioner are set out in paragraph 5 of the counter-affidavit. One Mr. Howell Jaid Nongsiej made a verbal complaint before the Deputy Superintendent of Police Mr. J.C. Mawroh, that one Police Sub-Inspector and two other police personnels in uniform snatched away wrist watches belonging to one Mr. Kemelin Jaid Majaw and Alta Singh and also a camera box with a cover belonging to Mr. Kemelin Jaid Majaw at Umshyrpi Bridge at about 6 A.M.
This complaint was made at about 7 A.M. The Deputy Superintendent immediately held inquiry into the allegations. Sri Goswami appeared before the Deputy Superintendent of Police in his office and stated before him that he along with Assistant Sub-Inspector Sen and constable Nandaraj checked the aforesaid vehicle at Umshyrpi Bridge but denied to have taken away the above-mentioned articles. Thereafter it is alleged that the Sub-Inspector B.R. Sarma was deputed to make a search and he found the camera from inside the pillow in the bed of Assistant Sub-Inspector Sen at Cantonment Beat House in presence of constable Nandaraj but in the absence of the Assistant Sub-Inspector Sen.
The camera was produced by the Sub-Inspector before the Deputy Superintendent of Police. Thereafter it is alleged that when the three persons were confronted with Kemelin Jaid Majaw, they admitted before the Deputy Superintendent of Police to have taken away the above-mentioned articles from Mr. Kemelin Jaid Majaw and further the Assistant Sub-Inspector Sen is alleged to have admitted before the Deputy Superintendent of Police that the watches were in the Cantonment Beat House. On his admission the Deputy Superintendent of Police sent Sub-Inspector Sarma along with the Assistant Sub-Inspector Sen to recover the watches.
When the Sub-Inspector arrived at the Cantonment Beat House, the Assistant Sub-Inspector Sen stated to him that he handed over the watches to constable Brojendra Acharjee who was not found but one brother of his was found in the Beat House. The brother was taken by Sub-Inspector Sarma and the Assistant Sub-Inspector Sen to the house of constable Brojendra at Dhankheti where he was found and Mst. Sailada aunt of Brojendra admitted before Sub-Inspector Sarma that Brojendra kept two wrist watches with her for safe custody on that very day. The admission made by Jatindra Mohan Goswami petitioner in rule No. 99/60 and Sushil Ranjan Sen petitioner in rule No. 105/60 before the Deputy Superintendent of Police were neither recorded nor the record of admissions if any had been produced in the inquiry.
The petitioners were not supplied with any copy of those statements and those admissions have been made on the basis of the departmental finding against the petitioners. There was thus in our opinion, violation of the principles of natural justice in not supplying the petitioners with any copies of the admissions.
8. Reference in this connection may be made to the case of Jagdish Prasad Saxena v. State of Madhya Bharat (now M.P.) AIR 1961 SC 1070. It was held in this case that-
The departmental enquiry is not an empty formality; it is a serious proceeding Intended to give th6 officer concerned a chance to meet the charge and to prove his innocence. In the absence of any such enquiry it would not be fair to strain facts against the appellant and to hold that in view of the admissions made by him the enquiry would have served no useful purpose. That is a matter of speculation which is wholly out of place in dealing with cases of orders Passed against public servants terminating their services.
In this case the action was taken against the civil servant not on any inquiry held but on the admissions made by him in another inquiry.
It was held that the statements made in the other inquiry could not be relied upon and could not form the basis of the action in the departmental inquiry. In the present case as I have pointed out, the admissions alleged to have been made by the petitioners before the Deputy Superintendent of Police have been relied upon against the petitioners which constitutes a denial of a reasonable opportunity to the petitioners. After the preliminary inquiry the Deputy Superintendent of Police submitted a report and on that report on the 28th November 1957 the order suspending the petitioners was passed by the Superintendent of Police. Thereafter on the 29th November 1957 the charge-sheet was given to the petitioners by the Deputy Superintendent who had made the preliminary inquiry. Thereafter the Superintendent of Police entrusted the inquiry to Mr. Hazarika, another Deputy Superintendent of Police, who on the 10th March 1958 gave a fresh charge-sheet to the petitioners.
9. If tile proceedings can be regarded to have commenced on the charge-sheet given by Mr. Hazarika on the 10th March 1958, the petitioners do not appear to have been allowed to cross-examine the witnesses after the 10th March 1958. The fact that charge-sheet was given on the 10th March 1958 itself indicates that the witnesses had been examined in the presence of the petitioners before that date.
If the proceedings were started afresh on the statement of charges given by Mr. Hazarika on the 10th March 1958, then the petitioners should have been allowed to cross examine the witnesses thereafter. If however, it is contended that the proceedings had already started on the charge given by the Deputy Superintendent of Police Mr. Mawrah on the 29th November 1957 and the witnesses were examined in the presence of the petitioner on the 10th March 1958 or earlier on the basis of those charges, in that case, the initiation of proceedings was by a person who was examined as a witness later In the proceedings and thus the proceedings before him cannot be regarded as valid proceedings. The petitioners asked for the copy of the statements of the witnesses which was not supplied to them.
It is true that the evidence recorded during the inquiry forms part of the record and the petitioners will not be entitled to have any copy of the same. But if the inquiring officer relied upon the admissions made by the petitioners before the Deputy Superintendent of Police prior to the commencement of the inquiry and on the statement of the witnesses made before the Deputy Superintendent of Police in that preliminary inquiry or even on the report of the Deputy Superintendent submitted to the Superintendent of Police after his preliminary inquiry, a copy of the statements and the report should have been supplied to the petitioners to enable them to disprove the charges against them.
In our opinion therefore, the petitioners were not given reasonable opportunity envisaged under Article 311(2) of the Constitution and the petitions are accordingly allowed. The order dated the 5th May 1958 passed by the Superintendent of Police and the order dated the 19th May 1960 passed on appeal by the Deputy Inspector General of Police, Range, Assam are quashed. The petitioners will get their costs in each case which we assess to be Rs. 50/- in each case.
S.K. Dutta, J.
10. I agree.