CIVIL APPELLATE JURISDICTION : Civil Appeal No. 571 of 1967. Appeal by special leave from the judgment and decree dated October 12, 1966 of the Punjab High Court, Circuit Bench at Delhi in Regular Second Appeal No. 28-D of 1966. R. N. Sachthey, for the appellant. N. D. Bali and D. D. Sharma, for the respondent. The Judgment of the Court was- delivered by Sikri, C. J.-The respondent Ram Kishan, hereinafter referred to as the plaintiff, a Foot Constable, filed a suit in the Court 48-1 S.C. India/71 of Sub-Judge 1st Class, Delhi, challenging his dismissal from service by an order dated 25th October, 1960. This order was passed by Shri M. K. Saxena, Superintendent of Police (Traffic), Delhi. It was alleged by the plaintiff that this order was bad and illegal on various grounds. Two grounds pay be mentioned here : (1) That Shri M. K. Saxena, Superintendent of Police (Traffic), Delhi was not a District Superintendent of Police, (2) That the mandatory provisions of Punjab Police Rule 16.38 had been violated inasmuch as no information was given to the District Magistrate as laid down in the Punjab Police Rule 16.38(1) and the District Magistrate never decided whether the preliminary investigation was to be conducted by the police or by a selected Magistrate 1st Class. It was further alleged that even the provisions of sub-Rule (2) of Rule 16.38 were not observed. The learned Sub-Judge decreed the suit and gave a, declaration that the dismissal of the plaintiff was void. A decree for Rs. 1151/- was passed in favour of the Foot Constable’ Among other issues framed, the following issues may be noticed:
(1)Whether the Superintendent of Police
(Traffic) was not competent to pass the
impugned order as alleged ?
(2) Whether the provisions of Rules 16-38
and
16.24of the Punjab Police Rules were complied
with by the defendant ? If not, to what effect
? The learned Sub-Judge held and decided issue No. 1 against the Government and held the order of dismissal to be vitiated. Regarding issue No. 2, however, he held that there was a complete compliance of Rule 16.24. He further held that even as regards Rule 16.38, the necessary permission of the District Magistrate, Delhi for taking the departmental action against the plaintiff was obtained from the District Magistrate vide Ex. P.9A. The Government filed an appeal and the Additional District Judge dismissed the appeal. The Government then filed an appeal before the High Court. Mehar Singh,, J. following an earlier decision(1) of the Division Bench of that Court dated March 4, 1964 held that Mr. M. K. Saxena, Superintendent of Police (Traffic), Delhi, was not competent to dismiss the plaintiff. The learned Judge did not give leave to file Letters Patent Appeal and the Government having obtained Special Leave, the appeal is now before us. The first issue is now concluded against the plaintiff by a decision of this Court in the case Union of India v. Jagjit Singh (2). However, the appeal must fail on the ground that the (1)Union of India v. Ram Kishan-Regular Second Appeal No. 258-D of 1962. (2)[1970] 1 S.C. R. 163, 168. provisions of Rule 16.38 were not complied with in this case. In a similar case Delhi Admn. v. Chanan Shah(1) this Court observed
"It is hot necessary to decide in this case
whether the provisions of Rule 16.38 of the
Punjab Police Rules are mandatory or
directory. Even assuming that the rule is
directory we find that there has been no
substantial compliance with its provisions.
The complaint fell, within rule 16.38, and it
was for the District Magistrate to decide who
should investigate the case. No investigation
of any kind was made under his directions.
Without obtaining his directions, the
Superintendent of Police held an inquiry and
passed an order of censure. The order was set
aside by the Deputy Inspector-General.
Thereafter by D. O. letter No. 2165-C, the
Superintendent of Police, asked for the
sanction of the District Magistrate to proceed
departmentally. Even at this stage, the
District Magistrate was not informed that the
Superintendent of Police held an inquiry and
passed an order of censure and that his order
was set aside by the Deputy Inspector-General.
The inquiry held by the Superintendent of
Police was not authorised by the District
Magistrate nor did it receive his approval.
The District Magistrate gave his sanction
without recording any reasons and without
applying his mind to the requiremen t of r.
16.38. In the circumstances, we are
constrained to hold that the departmental
action taken against the respondent is
invalid." In this case the permission relied on by the Government is in following terms:
"MEMO
Referring your memorandum No. 4425/T dated the
8th February, 1960 on the subject noted above.
I agree to departmental action being taken
against F. C. Ram Kishan No. 4494."
We may here reproduce relevant part of Rule
16.38.
"16.38. (1). Immediate information shall be
given to the District Magistrate of any
complaint received by (1) [1969] 3 S.C.R. 658.
the Superintendent of Police, which indicates
the commission by a police officer of a
criminal offence in connection with his
official relations with the public. The
District Magistrate will decide whether the
investigation of the complaint shall be
conducted by a police officer, or made over to
a selected Magistrate having 1st class powers.
(2). When investigation, of such a complaint
establishes aprima facie case, a judicial
prosecution shall normally follow; the matter
shall be disposed of departmentally only if
the District Magistrate so orders for reasons
to be recorded. When it is decided to proceed
de’partmentally the procedure prescribed in
rule 16.24 shall be followed. An officer
found guilty on a charge of the nature
referred to in this rule shall ordinarily be
dismissed. " In the present case no immediate information was given to the District Magistrate in respect of the complaint received against the plaintiff nor did the District Magistrate decide whether the investigation of the complaint shall be conducted by a police officer, or made over to a selected magistrate having 1st class powers. It is true that the District Magistrate purported to give permission under subRule 2 of Rule 16.38 but as the 1st part of the Rule was not complied with at all the departmental inquiry is vitiated and the order of dismissal must be declared illegal. In the result we dismiss the appeal with costs. K.B.N. Appeal dismissed.