1951 (5) TMI 23 - HC - Indian Laws

Dismissal Order Quashed for Lack of Jurisdiction and Competence

The court held that the dismissal order dated 6-5-1950 was made without jurisdiction and by a person not competent to do so. The order was quashed, and ... Quasi-judicial proceedings - certiorari - Article 226 of the Constitution of India - protection against dismissal by an authority subordinate to that by which he was appointed (Article 311(1) Constitution of India) - ultra vires of departmental rule inconsistent with the Constitution - no bar of acquittal in departmental proceedings - Article 20(2) inapplicable to disciplinary proceedingsQuasi-judicial proceedings - certiorari - Article 226 of the Constitution of India - Whether departmental proceedings under the Bengal Subordinate Service (Discipline and Appeal) Rules, 1936, are quasi-judicial and amenable to certiorari. - HELD THAT: - The Court held that the disciplinary proceedings contemplated by the 1936 Rules involve representation by the accused, inquiry, reception and weighing of evidence, maintenance of a record and an appeal mechanism, and therefore contain the essential elements of a judicial approach. Authorities and rules cited in argument establish that a decision which requires consideration of facts and affects rights is quasi-judicial. Consequently, orders made in such departmental enquiries are amenable to supervisory jurisdiction by this Court under Article 226 by way of certiorari. [Paras 24, 26, 27]Departmental enquiries under the 1936 Rules partake of a quasi-judicial character and certiorari lies to quash orders made in such proceedings.Protection against dismissal by an authority subordinate to that by which he was appointed (Article 311(1) Constitution of India) - ultra vires of departmental rule inconsistent with the Constitution - Whether the order of dismissal dated 6-5-1950 was valid where the dismissal was purportedly imposed by an authority subordinate to the authority by which the petitioner was appointed. - HELD THAT: - The Court accepted the petitioner's case that, on the admitted facts and in the absence of production of the Police Gazette and service book, it must be presumed he was appointed by the Deputy Inspector General of the Range. Rules of the 1936 service code and Article 311(1) bar dismissal by an authority subordinate to the appointing authority. Rule 15 of the Police Regulations, 1915, empowering Superintendents to dismiss ministerial officers, cannot operate to override Article 311(1) and is rendered inoperative to the extent of the inconsistency. The dismissal order dated 6-5-1950 was therefore made by a person not competent to do so and was without jurisdiction. [Paras 19, 20, 21, 30, 32]The order of dismissal was without jurisdiction being made by an authority subordinate to the appointing authority and is liable to be quashed under Article 226; the conflicting rule is inoperative as inconsistent with Article 311(1).No bar of acquittal in departmental proceedings - Article 20(2) inapplicable to disciplinary proceedings - Whether the petitioner's acquittal in criminal proceedings by the Sessions Judge barred departmental proceedings on the same facts under Article 20(2) of the Constitution. - HELD THAT: - The Court held that Article 20(2) - which protects against double jeopardy in 'prosecution' before a court or legal tribunal - does not extend to departmental or disciplinary proceedings which are administrative in character for imposing service penalties. This position is supported by the Police Regulations (Rule 863) which expressly provides that a judicial acquittal is not a bar to the imposition of departmental punishment for the same matter. Accordingly, the challenge based on Article 20(2) must fail. [Paras 33, 34, 35, 36]Acquittal in criminal proceedings does not bar disciplinary proceedings; Article 20(2) is inapplicable to departmental punishment and the contention founded thereon is rejected.Final Conclusion: The writ is allowed: the rule is made absolute, the order of dismissal dated 6-5-1950 is quashed as having been made without jurisdiction, and the petitioner is entitled to costs. Issues Involved:1. Jurisdiction and competence to dismiss the petitioner.2. Adequacy of opportunity for defense in departmental proceedings.3. Applicability of Article 311 of the Constitution of India.4. Nature of departmental proceedings as judicial or quasi-judicial.5. Validity of departmental proceedings post-acquittal in criminal court.6. Compliance with procedural rules and regulations.Detailed Analysis:1. Jurisdiction and Competence to Dismiss the Petitioner:The petitioner contended that the order of dismissal was passed by an officer not competent to do so. Under Rule 4(a) of the Police Regulations, Bengal, 1915, appointments of lower grade clerks are made by the Deputy Inspector General of the Range. The petitioner was appointed as a lower grade clerk in 1927 or 1928 by the Deputy Inspector General of the Range. However, the dismissal order dated 6-5-1950 was made by respondent 2, who held the rank of Superintendent of Police. According to Article 311 of the Constitution of India, a person cannot be dismissed by an authority subordinate to that by which he was appointed. Therefore, the order of dismissal was held to be made without jurisdiction and was quashed.2. Adequacy of Opportunity for Defense in Departmental Proceedings:The petitioner was given reasonable opportunities to defend himself against the charges. Despite being repeatedly given opportunities, the petitioner did not avail himself of such opportunities and the enquiry had to be held in his absence. The court found that the petitioner was given a reasonable opportunity of showing cause against the action proposed to be taken in the departmental enquiry, and he could not make any grievance on that score.3. Applicability of Article 311 of the Constitution of India:Article 311(1) of the Constitution stipulates that no person holding a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. Since the petitioner was appointed by the Deputy Inspector General of Police and dismissed by a Superintendent of Police, the dismissal order violated Article 311(1) and was thus without jurisdiction.4. Nature of Departmental Proceedings as Judicial or Quasi-Judicial:The court held that departmental proceedings under the Bengal Subordinate Services (Discipline and Appeal) Rules, 1936, are quasi-judicial in nature. These proceedings involve giving an opportunity to the charged person to make a representation, conducting an inquiry, hearing and weighing evidence, and considering all facts and circumstances before arriving at a decision. Therefore, an order made in such proceedings can be interfered with by a Writ of Certiorari.5. Validity of Departmental Proceedings Post-Acquittal in Criminal Court:The petitioner argued that after being acquitted of the charges in the criminal proceedings, the departmental proceedings on the same charges were without jurisdiction and not warranted by law, citing Article 20(2) of the Constitution. However, the court held that Article 20(2) pertains to judicial proceedings before a court or legal tribunal and does not apply to departmental or disciplinary proceedings. Rule 863 of the Police Regulations allows for departmental punishment irrespective of a court's acquittal.6. Compliance with Procedural Rules and Regulations:The court examined the relevant rules, including Rules 8, 9, and 10 of the Bengal Subordinate Services (Discipline and Appeal) Rules, 1936, which outline the ranks of officers competent to impose penalties and the procedural requirements for dismissing an officer. The court found that the dismissal order did not comply with these rules, as it was made by an officer not competent to do so.Conclusion:The court concluded that the order of dismissal dated 6-5-1950 was made without jurisdiction and by a person not competent to make it. The rule was made absolute, and the order of dismissal was quashed and canceled. The petitioner was entitled to the costs of the proceedings.