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Civil Appeal from Original Decree No. 2 of 1959, decided on 17th August 1961.
Ss. 240 & 243‑S. 243 and not S. 240 governs cases of subordinate ranks of Police service.
Noorul Hassan v. Federation of Pakistan P L D 1956 S C (Pak.) 331 fol.
(b) Bengal Police Regulation (1943),
Regs. 29 (d), 861 (o) and 865 ‑ Magisterial enquiry pending against Police Officer ‑Departmental enquiry not permissible till appeal against judgment and order of original Court, either barred by limitation or preferred and disposed of by appellate forum‑Sub‑Inspector charged with gross misconduct Departmental proceedings to be initiated by Superintendent of Police‑Superintendent accepting findings of Additional Superintendent after thorough scrutiny of evidence and due consideration of circumstances‑Amounts to sufficient compliance of Reg. 861 (o) Approval of Superintendent, at initiation of proceedings or subsequent thereto, stands on same footing.
Mansur All v. Province of East Pakistan P L D 1959 Dacca 464 foll.
Md. Jani Alam, A. G. P. for Appellants.
Abdul Bye Chowdhury with Md. Nurul Huq for Respondents.
This appeal is by the defendants‑the Province of East Pakistan and another against the judgment and decree passed by the Subordinate Judge, Dacca, in the Title Suit No. 37 of 1957.
2. The plaintiff‑respondent was appointed a Sub‑Inspector of Police in the East Pakistan Police Service on 3‑1‑52. During the months of April and May 1953, he was posted at Serajdikhan Police Station in the district of Dacca as the second officer.
3. On 1‑5‑53, a constable, a Chowkidar and one Assistant Sub‑Inspector of Police went to village Shikarpur within the said Police Station to execute a warrant of arrest against one Kala hand Moral in connection with a cattle theft case. The Police party was resisted by Kala Chand Moral and his co‑villagers from executing the warrant of arrest and it was further alleged that the said Police party was assaulted by the villagers. On 2‑5‑53 the Police party headed by the Assistant Sub‑Inspector of Police came back to the Police Station and lodged a First Information Report under sections 148, 333, 379 and 342/42 of the Pakistan Penal Code. The Officer‑in‑charge of the Police Station being out on duty, the plaintiff who was the second in command with a pose of police left for Shikarpur on 3‑5‑53 to investigate into the allegations made by the Assistant Sub‑Inspector on the previous day. Having gone to Shikarpur, the plaintiff started making search of the houses of the villagers including Kala Chand Moral for recovery of certain Government properties, for instance, the shoulder badges of the Assistant Sub‑Inspector etc. which were alleged to have been taken away on the first when the party was assaulted by the villagers and also to arrest the culprits of the occurrence that took place on the 1st day of May. There after the Officer‑in‑Charge of the Police Station reached village Shikarpur on getting information and by the afternoon of the 3rd the Police party came back to the Police Station having arrested a few persons.
4. On the 7th of May, 1953, a criminal case against the plaintiff and the other police constables accompanying him was started by one Jamiran Nessa, wife of one Khejmat of the Shikarpur village whose house was searched by the plaintiff on the 3rd, under sections 448/380/354/323 of the Pakistan Penal Code. This case was registered in the Court of the S. D. O. Munshiganj, as G. R. Case No. 587 al/380/55 of 1953.
5. On the 27th of May 1953, the plaintiff was suspended along with constable No. 445 Yousuf Ali of Serajdikhan Police Station with immediate effect by the Superintendent of Police, Dacca, for having committed excesses at the time of search made in the village of Shikarpur in connection with S. R. Case No. 54/53. On the 30th of May, 1953, Additional Superintendent of Police, Dacca, drew up proceedings against the plaintiff. Charge‑sheet was framed by the said Additional Superintendent of Police on the 30th of May, 1953, containing three items of charges. The same was given to the plaintiff on the 31st of May 1953. From 31‑5‑53 to 3‑6‑53 enquiry w s held by the Additional Superintendent of Police and evidence of witnesses including those produced by the plaintiff were recorded by the Additional Superintendent of Police. On the 20th of June, 1953, the plaintiff submitted an explanation to the Additional Superinten dent of Police. On the 3rd of July, 1953, the Additional Superintendent of Police submitted his report to the Superinten dent of Police with a recommendation for dismissal of the plaintiff from service for having found him guilty of the offence of committing excesses during the search made by him on the 3rd of May, 1953 and for having omitted to record searches of about fifteen houses conducted by him on the same date in the general diary. On 4‑7‑53 the plaintiff was supplied with a copy of the findings of the Additional Superintendent of Police which was received by him on the same date. On 23‑7‑53 the Superintendent of Police gave a personal hearing to the plaintiff, when the plaintiff also submitted another explanation to the Superintendent of Police. Having concluded the hearing given by him to the plaintiff, the Superintendent of Police reserved orders and on the 27th of August 1953, the Superintendent of Police by the dis trict's order No. 5380 of the even date dismissed the plaintiff from service. Thereafter the plaintiff preferred an appeal before the Deputy Inspector‑General of Police and the same being rejected, a Memorial to the Government was submitted which too was rejected.
6. On 5‑11‑56 the plaintiff brought the present suit for a declaration that the order of dismissal passed by the Superinten dent of Police, Dacca, on 27‑8‑53 against the plaintiff was illegal, unjust ultra vires and without jurisdiction and also for setting aside the said order of dismissal and for a direction by the Court by way of mandatory injunction to re‑instate the plaintiff to the post of Sub‑Inspector of Police and for costs of the suit. The prayer for issue of a mandatory injunction was withdrawn and the plaint stood amended to that extent. Therefore, the suit ultimately was tried on the issue of a declaration as asked for by the plaintiff in prayer (a) of the plaint The Province of East Pakistan entered appearance and filed a written statement, deny ing the allegations made by the plaintiff and also asserting that the order of dismissal passed by the Superintendent of Police was legal, valid and competent. The Province further asserted that the plaintiff was given the fullest opportunity of defending himself and adducing defence evidence in support of his conten tion during the departmental inquiry held by the Additional Superintendent of Police. Of the four issues framed by the learned Subordinate Judge, issue No. 3 was in the following terms:
"3. Was the proceeding against the plaintiff drawn up according to law, and was he dismissed from service legally Is the plaintiff's allegation that the order is illegal and without jurisdiction true "
7. The plaintiff in support of this case examined himself as the sole witness. Similarly, the defendants put into box only one witness to prove certain documents, which were produced in Court.
8. The main contention of the plaintiff in his evidence was that the charge against him was framed on 30‑5‑53 a copy of which was given to him on 31‑5‑53 at about 2 p.m., almost imme diately before the enquiry started and, therefore, he was not given proper and sufficient opportunity to show cause to the charges made. His other contention was that the Superintendent of Police did not give him a second opportunity to show cause as to why he should not be dismissed from service although the Superintendent of Police gave him a personal hearing at the last moment. In his cross‑examination the plaintiff admitted that he received a copy of the findings of the Additional Superinten dent of Police and that he submitted two explanations one at the conclusion of the inquiry and the other on the 20th to the Superintendent of Police. In connection with these explanations submitted by him, the plaintiff stated in his cross‑examination that the Additional Superintendent of Police recommended his dismissal and the Superintendent of Police asked him whether he had anything to say about this matter, although he has added later on, that the Superintendent of Police did not ask him to show cause why he should not be dismissed. Nothing very much turns upon the evidence of the plaintiff except that his admission with regard to the fact of the Superintendent of Police asking him as to whether he had anything to say with regard to the matter of dismissal.
9. The learned Subordinate Judge having tried the issues held on a consideration of clause (o) of Regulation 861 of the Police Regulations, Bengal, that the provisions thereof were violated in the present case and that the non‑compliance with the provisions of Regulation 861 (o) of the Police Regulations, Bengal, was a fatal defect in the enquiry in question which had vitiated the order of dismissal of the plaintiff. The learned Subordinate Judge in decreeing the suit of the plaintiff based his decision on the two grounds, namely, (a) that the proceeding was not drawn up by the Superintendent of Police as contemplated by Regulation 861 (o) and, therefore, there was a clear violation of the said Regulation, (b) that the mandatory provisions of sec tion 240 (3) of the Government of India Act having been violated in the present case, the plaintiff was entitled to get the relief prayed for.
10. Mr. Jani Alam, the learned Assistant Government Pleader, appearing for the appellants before us contended that the provisions of section 240 (3) of the Government of India Act, 1935, are not at all applicable to the case of the plaintiff, and, therefore, the learned Subordinate Judge was in error in holding that the non‑observance of the provisions of the said section of the Government of India Act in dealing with the case of the plaintiff nullified the order of dismissal of the plaintiff. Mr. Jani Alam submits that section 243 of the Government of India Act governs the case of the officers belonging to the subordinate ranks of the various police forces and there is no scope of application of the provisions of section 240 of the Government of India Act to the case of the plaintiff. Sections 240 and 243 of the Government of India Act are in the same Chapter, that is Chapter 2. Section 240 of the Government of India Act as we read and as has been held in many other cases relates to the members of the Civil Services in Pakistan other than members of the subordinate ranks of the police force. Section 243 of the Act reads as follows :‑
"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 such as may be determined by or under the Acts relating to those forces res pectively."
Therefore, Mr. Jani Alam argues that the conditions of service of the members of the subordinate ranks of various police forces must, therefore, be governed by any Act that may have been passed relating to those forces. He refers to the Police Act of 1861 (Act V of 1861).
11. In terms of the provisions of section 243 it cannot but l be held that the members of the subordinate ranks of the police service shall not be entitled to invoke the aid of section 240 of the Government of India Act, if there is an Act relaing to the police force. In the case of Noorul Hassan v. Federation of Pakistan (P L D 1956 S C (Pak.) 331), the Supreme Court has dealt with the application of section 240 of the Government of India Act to the case of a member of subordinate rank in the police service and it has been held, as will be evident from para. 43 of the judgment that the provisions of said section has no application in the case of a mem ber of a subordinate rank of the police service, rather it is section 243 which applies. The paragraph referred to above is in the following terms
"43. It will be convenient to state briefly the various con tentions raised before each of the two Courts below, and the manner in which they were ‑ dealt with by those Courts.. The first contention dealt with in the judgment of the trial Court is that in view of section 243 of the Government of India Act, 1935, the provisions of section 240 of that Act have no appli cation to the plaintiff. Section 243 is the last of four sections commencing with section 240 which make general provisions for the civil services. It provides that "notwithstanding any thing in the foregoing provisions of this Chapter (i.e. in sections 240, 241 and 242) the conditions of service of the subordinate ranks of the various police forces in Pakistan shall be such as may be determined by or under the Acts relating to those forces respectively". The trial Court was of the opinion that the provisions of section 240 would apply to the plaintiffs; as members of the subordinate ranks of the Karachi Police if there were no contrary provisions of the nature contemplated by section 243 of the Government of India Act, or, in other words, that any provisions falling under section 243 would, to the extent of repugnancy prevail against the statutory provi sions of section 240. This conclusion is strongly based upon the decision of the Judicial Committee in the case of Suraj Ndrain Anand 75 1 A 343. There, an appeal by a dismissed police officer of the subordinate ranks had been allowed by tire Federal Court of India on the ground that the officer had been dismissed by an authority subordinate to the authority by whom he had been appointed. The action taken was in direct contravention of subsection, (2) of section 240 and the Federal Court had granted a declaration that the order of dismissal was void and inoperative. In appeal, the N.W.F. Province had at first satisfied the Judicial Committee that the dismissal was in compliance with a rule whose validity was preserved by section 243 and accordingly the Privy Council made a recommendation that the appeal should be allowed. Later it was proved to the satisfaction of the Judicial Commit tee that on the date when the order of dismissal was made, there was no such rule in existence and thereupon the Judicial Committee altered its decision and upheld the decree of the Federal Court of India., That is a clear instance of the application to a member of the subordinate police force of certain provisions contained in section 240 in the absence of any provision on that point under section 243."
We have, therefore, no manner of doubt in our mind that there is substance in the contention of Mr. Jani Alam on this point and that the findings of the learned Subordinate Judge in regarding the applicability of section 240 of the Government of India Act to the case of the plaintiff is clearly wrong.
12. On the question of non‑observance of the provisions of clause (o) of Regulation 861 Mr. Jani Alam has submitted that from the facts of the present case it will be clear and evident that the said provisions have been substantially complied with. In support of his contention, he has referred us to the order of suspension made by the Superintendent of Police, to the charge framed against the plaintiff, to the explanations submitted by him, to the order recorded by the Superintendent of Police on the 23rd of July, 1953 and to his final order approving the findings of the Additional Superintendent of Police and passing the order of dismissal against the plaintiff by satisfying himself from the records of the enquiry as to the guilt of the appellant.
13. There is a cross‑objection filed by the plaintiff in this appeal which is based on Regulations 29 and 865 of the Police Regulations, Bengal, 1943, Volume I.
14. Mr. Abdul Hye, the learned Advocate, appearing for the respondent has contended before us that firstly, the provisions of Regulation 29 of the Police Regulations, Bengal, having not been observed, the enquiry held by the Additional Superintendent of Police against his client is in violation of the Regulations which control, govern and regulate the principle and procedure of the departmental enquiries held against any member of the police service. Regulation 29 of the Police Regulations, Bengal, reads as follows:‑
"29. When an order is passed for a magisterial inquiry into an allegation against a police officer‑
(a) it should be held at the place of occurrence ;
(b) the Magistrate deputed to hold it should, if possible, proceed there not later than the following day ;
(c) such Magistrate should be an Assistant Magistrate or a Deputy Magistrate of the first class if the officer concerned is of or above the rank of Sub‑Inspector and is accused of committing a cognizable offence or of having demanded or accepted a bribe ;
(d) no concurrent departmental inquiry should be made but the Superintendent shall depute a police officer to attend and to arrange for the production before the Magistrate of any police witnesses and of such other evidence as may be available
(e) no police officer connected with an investigation in the course of which there is alleged to have been ill‑treatment by the police should have any concern with the conduct of the inquiry into such allegation."
Mr. Hye relies on clause (d) of this Regulation. According to him the filing of the criminal case by Jamiran Nessa on 7‑5‑53 is a magisterial inquiry which was pending against his client and during the pendency of which the departmental proceedings were started on the 30th of May, 1953. The petition of complaint by Jamiran Nessa was finally disposed of by the Magistrate on the 3rd of October 1955, on grounds that the parties had compromised the matter out of Court. Reading clause (d) of Regulation 29, Mr. Hye, therefore, wants to submit that the departmental inquiry held by the Additional Superintendent of Police was concurrent with the proceedings pending in Court at the instance of Jamiran Nessa and that proceedings must be construed to be a magisterial inquiry in terms of first sentence of this Regulation and, therefore, the inquiry held by the Additional Superintendent of Police was in violation of this Regulation and as such was bad in law. Mr. Hye does not controvert the position that, the members of the subordinate rank of the police force are to be governed by the provisions of the Act relating to the service, that is the Police Act of 1861, as spoken of in section 243 of the Government of India Act. His argument, therefore, is that the department is bound to follow the provisions of the Regu lations framed under the Police Act and these Regulations have the force of law and violation of any of these Regulations in the conduct of an inquiry tantamount to an illegality in the pro ceedings. There is no doubt that no concurrent departmental inquiry can be held when a magisterial inquiry is pending in terms c of this Regulation, but where no magisterial inquiry is pending we do not find any difficulty on the part of the department to have a department inquiry made against the delinquent.
15. In the present case, Jamiran Nessa filed a petition of complaint in the Court of the Magistrate at Munshiganj on the allegations of offences committed by the plaintiff under sec tions 448/380/354/323 of the Pakistan Penal Code. There was no allegation made against the plaintiff by Jamiran Nessa, nor it could be made by her, and there was no charge framed against the plaintiff by the Magistrate in regard to his not mentioning in the general diary the fact of searching thirty houses. This charge of non-observance of an obligation on the part of the Sub-.Inspector which is vital in the case of police officers, that is nunnery of searches made by him in the general diary, was not under inquiry by the Magistrate at Munshiganj. Therefore, it will not be correct to say; as has been said by Mr. Hye, that a magisterial inquiry being pending, the inquiry held by the Additional Superintendent of Police became concurrent and, therefore, came within the mischief of clause (d) of Regulation 29.
16, Next point raised by Mr. Hye is with regard to Regula tion 865 which is also mentioned, as has been observed, in the cross‑objection of the plaintiff. Regulation 865 reads as follows :‑‑
"When a police officer is to be dismissed or some departmental punishment is intended to be awarded to‑ him on the basis of a charge for which the officer has already been tried and convicted in a Court, or found guilty by a commis sion whose finding has been accepted by the Provincial Government, it shall be sufficient in the departmental proceed ings to supply a copy of the judgment of the Court, or findings of the commission, the reasons for dismissal or punishment, and the record of the previous character of the offender. Such proceedings shall not be instituted until the final appeal, if any, against the order of conviction has been heard, or the period of limitation for such appeal has expired.
In the case of strictures expressed by a Court of Sessions or a Special Tribunal or the High Court, if the Judge or Judges record the opinion that a special enquiry is necessary such enquiry shall be publicly conducted by a commission of two officers, of whom one has had judicial experience and neither belongs to the Police Department.
In cases where a Court of Sessions or a Special Tribunal or the High Court has expressed strictures but has not definitely recorded its opinion that a special enquiry is necessary, the Inspector‑General should he consider it necessary, may move the Provincial Government for the appointment of a commis sion."
17. The first paragraph of this Regulation is relied on by Mr. Abdul Hye. His contention is that the proceedings against his client should not have been instituted until the final decision in the case (G. R. Case No. 87‑al/380/55 of 1953) filed by Jamiran Nessa. The initiation of the proceedings by the department against his client has, according to him, violated the provisions of this Regulation. He specifically relies on the last sentence of the first paragraph of this Regulation which begins with the words "Such proceedings shall not be instituted until the final appeal, if . . . . ." This Regulation, in our opinion, does not relate to a case as the present one. This Regulation, in our view, speaks of a case where in a criminal proceeding in a Court of law any of the members of the police force having been found guilty has to be removed from the service. In that case the departmental proceedings for removal of the officer from the service shall not be instituted until an appeal preferred by the delinquent to a higher forum has either been disposed of or until the period fixed for limitation of preferring an appeal against the judgment and order of the original Court has expired. This is reasonable, because if in a criminal case which may have been brought by a private individual against a member of the police force for reason completely unconnected with his duty as an officer, he has been found guilty and convicted, the department should not in undue haste remove him from service by instituting a departmental proceeding for the purpose, as there is no knowing as to when the officer prefers an appeal against his order of con viction, he will be acquitted or the order of conviction will be maintained. Therefore, the department should stay its hands until a final decision in the matter is reached. In the above view of the matter that we take of this provision of Regulation 865, we see no substance in the contention of Mr. Hye and the same is accordingly repelled.
18. Mr. Hye has next contended that the proceedings initiated by the Additional Superintendent of Police against his client was in clear violation of the provisions of clause (o) of Regulation 861. As reference to this Regulation shall have to be made in connection with other points raised by Mr. Hye in the appeal we would rather quote the whole of Regulation 861 at this stage:
"861. (a) No major punishment shall be awarded except in proceedings in the prescribed form (B. P. Form No. 164).
The provisions of this rule do not apply to proceed ings based on a judicial conviction or on the finding of a commission.
(b) A definite charge shall be framed before evidence is recorded. The alleged offence shall be clearly specified therein together with such particulars of the time and place of the alleged offence as will sufficiently acquaint the person charged with the offence with which he is charged. The person charged shall be given a copy of the charge and shall also be allowed to take copies of all evidence, both oral and documentary, contained in the proceedings.
(c) An oral enquiry shall be held if the person charged so requires or if the authority who has drawn up the proceedings so directs. At that enquiry oral evidence shall be heard as to such of the allegations as are not admitted and the person charged shall be entitled to cross‑examine the witnesses and to have such witnesses called as he may require Provided that the officer conducting the enquiry may, for special and sufficient reasons to be recorded in writing, refuse to call any such witness. '
(d) The person charged shall be required to put in within a reasonable time a written statement of his defence and to state whether he desires to be heard in person. If he states that he does not desire to put in a written statement or to be heard in person this fact shall be recorded in the proceedings.
(e) After the evidence of the witnesses has been recorded and the defen ce of the person charged placed on record, the officer conducting the enquiry shall in writing‑
(i) discuss separately each charge,
(ii) arrive at a finding on each charge, and
(iii) after taking into consideration the previous character of the person charged, make an order or recommend an order to the authority empowered to pass an order.
In cases in which the Enquiring Officer does not pass the final order and recommends an order to the authority empowered to pass an order, the person charged shall be furnished with a copy of the Enquiring Officer's finding and/or Superintendent of Police's recommendations so that he may at the personal hearing be in a position to object to or refute any thing therein stated which in his opinion is incorrect.
The authority empowered to pass the order of punishment shall grant a personal hearing to the person charged and then pass the final orders. When the enquiring officer himself passes the final order, no personal hearing is necessary, as the person charged is present, throughout the enquiry.
When the authority competent to pass the final order in the proceedings has come to a provisional decision as to the nature of the penalty to be imposed, he is delinquent has been given copies of the proceedings, and then order the why the particular penalty proposed be imposed upon him. This may writing, but if done orally the reply of proceeded against must be recorded in the proceedings.
(f) Clauses (c) to (e) shall not apply where the person con cerned has absconded, or where for other reasons it is found impracticable to communicate with him:
All or any of the said clauses may, in exceptional circum stances, and for special and sufficient reasons to be recorded in writing, be waived by the officer conducting the enquiry where there is a difficulty in observing them and where such clauses can be waived without injustice to the person charged.
(g) If an order is made placing a police officer under suspen sion it shall be entered in the order sheet and shall state what 'rate of subsistence allowance may be drawn by him.
An order releasing an officer from suspension shall state whether the period under suspension shall count towards service for leave and pension and shall also state what pay and allowances shall be drawn for the period during which he was under suspension (vide Fundamental Rule 54 and Rule 72, Bengal Service Rules, Part I.
(h) A copy of the order of punishment shall be entered in the district order book and a copy thereof furnished to the offender, his dated receipt being taken for the order and attached to the proceedings.
(i) The person affected by such order shall, on his depositing the usual copying fees, be given a copy of the whole record or he may provide his own paper and a copyist for the purpose.
(j) Proceedings in each year shall be consecutively number ed, and the number of the proceedings together with the offence and the punishment shall be recorded in the service book or roll of the offender.
(k) An order of punishment passed on the advice or with the concurrence of a higher authority shall be treated as an order of that authority.
(l) No Pleader or counsel shall be allowed to. appear in any proceeding or appeal.
(m) An order of punishment passed in a proceeding shall not be modified or cancelled without the sanction of the Appellate Authority.
(n) No proceedings shall be drawn up against an officer of the rank of Inspector without the sanction of the Deputy Inspector‑General except in the cases of serious misconduct when a preliminary order of suspension has been passed. In such case proceedings may be drawn up in anticipation of such sanction,
(o) Proceedings against Inspectors cases of serious misconduct against officers of and below the rank of Sub‑ East Inspector, shall be drawn up by the Superintendent. In other cases proceedings may be drawn up and evidence recorded by an officer not below the ran of Inspector (excluding Armed Inspectors) who will then submit the record to the Superinten dent for perusal; examination and issue of orders.
(p) With the exception of routine entries in the order sheet and the recording of the delinquent's "previous character," pro ceedings shall be written up by the enquiring officer."
19. Mr. Hye contends that clause (o) of this Regulation makes it mandatory upon the Superintendent to draw up pro ceedings against Inspectors and in cases of serious misconduct against officers of and below the rank of Sub‑Inspector. In the present case the proceedings having not been drawn up by the Superintendent the proceedings are bad, and any order passed upon the result of the enquiry held under the said proceedings is, therefore, also bad.
20. In answer to the arguments, Mr. Jani A1am submits that the Superintendent of Police in clause (o) of Regulation 8.61 also includes Additional Superintendent, as will be evident from clause (i) of Regulation 1 which is in the following terms
"1. (i) the word "Superintendent" means Superintendent of Police and includes an Additional Superintendent and any officer, not below the rank of Inspector, temporarily discharg ing the duties of the Superintendent of Police when the latter is incapacitated or absent from headquarters."
Mr. Hye contends that it could not be so, as will be evident from" the wordings of clause (o) itself. According to Mr. Hye, pro ceedings against Inspectors and in cases of serious misconduct against officers of and below the rank of Sub‑Inspectors must be drawn up by the Superintendent himself, as the word used in this sentence is "shall" and not "may", and also because the next sentence in the said Regulation will show that the framers of the Regulation have made a clear distinction between the Inspectors and Sub‑Inspectors guilty of gross misconduct and cases of officers of other ranks below that of the Sub‑Inspectors in the police force. When the second sentence of the Regulation speaks of "in other cases proceedings may be drawn up and evidence recorded by an officer not below the rank of Inspector", accord ing to Mr. Hye, no doubt is left in the mind of the reader of this Regulation that the framers of the Regulation did intend to create a difference between the rank of the delinquent and the rank of the officers who might draw up proceedings against respective classes of delinquents. In this connection Mr. Hye has also referred us to Regulations 39 and 40. According to Mr. Hye, clause (a) of Regulation 39 has described the. Additional Superin tendent to be in subbordinate alliance with the Superintendent and has been given the status of a second in command. He has more specifically relied on clause (b) of Regulation 39, which is in the following terms
"30. (b) Subject to any restriction imposed by these Regulations, the Superintendent may at his discretion employ an Additional Superintendent on any duty and may delegate to him the power to dispose of any particular item of work which is relatively less important and of which the Superintendent can be relieved without in any degree whatsoever diminishing his authority or responsibility.
The Superintendent shall, if necessary, consult the Deputy Inspector‑General when determining the duties ordinarily to be performed by the Additional Superintendent."
Mr. Hye argues that although it may be said that Superinten dent and the Additional Superintendent are of the same rank but it cannot be said that they are entitled or authorised under the Regulation to perform the same and similar duties at the same time. According to him, the Additional Superintendent is em powered, as will be evident from the wordings of this clause of Regulation 39, to do such works as will be entrusted to him by the Superintendent and powers which may be delegated to him by the Superintendent, but that too is subject to restriction that might have been imposed by the Regulation themselves, and in the present case, according to him, clause (o) of Regulation 861 imposes restriction upon the Superintendent either to entrust or to delegate to the Additional Superintendent the work of drawing up of proceedings against a Sub‑Inspector who may be guilty of gross misconduct. As such, the present proceeding as drawn up by the Additional Superintendent of Police is in clear violation of both the Regulations 39 and clause (o) of Regulation 861. We may notice in passing here that in a case where an order of dis missal is called for it is certainly a case of gross misconduct and, therefore, is covered by clause (o) of Regulation 861. Mr. Hye has referred us to Regulation 40 only to show that the powers and the works of Superintendent and of the Additional Superin tendent have been specifically defined by this Regulation and all and every works cannot be entrusted or delegated to the Additional Superintendent by the Superintendent as he pleases or as exigencies may call for, if it is found that there is a prohibition in the Regulations prohibiting delegation of such duties at d powers. In the case of Mansur Ali v. The Province of East Pakistan (P L D 1959 Dacca 464) a Division Bench of this Court has extensively quoted almost all the relevant Regulations, in the Police Regulations, Bengal for the purpose of finding out as to whether the Super intendent and the Additional Superintendent stand in the same position in relation to the works of a district. In that case, the question arose as to whether the order of dismissal passed by, the Additional Superintendent against a constable was in terms of the Police Regulations and the Court came to the clear finding that the Additional Superintendent had no authority to pass an order of dismissal against a police constable unless he can be shown to be in charge of the district in the absence of the Superintendent: But the petitioner lost his case on the ground that the order passed by the Additional Superintendent was counter‑signed by the Superintendent. In the case of Shiva Nanda Sinha v. State of West Bengal and others (59 C W N 794), a Single Judge of the Calcutta High Court held that the drawing up of proceedings by an officer other than the Superintendent of Police of the district is in violation of Regulation 861 (o) of the Police Regulations, Bengal. The Regulation 861 of the Police Regulations, Bengal, as applicable to the police in West Bengal is the same as in our country. The learned Judge having found that the order of drawing up of proceeding which was passed by a Deputy Super intendent of Police was counter‑signed by the Superintendent and, therefore, the learned Judge held that there was sufficient com pliance with the provisions of clause (o) of Regulation 861. Form these two decisions it will be clear that the Courts have not approved of the trend of interpreting the provisions of clause (o) of Regulation 861 in favour of the authorities, in a case where the proceedings have not been drawn up by the Superintendent of Police in compliance with the provisions of the said clause, unless it has E been found on fact that there has been sufficient compliance with the provisions of the clause otherwise. We are, therefore, of opinion that in a case where a Sub‑Inspector of Police is charged with gross misconduct, the departmental proceedings have to be initiated by the Superintendent of Police.
21. But this abstract proposition of law must always be applied to the facts of each case for its proper application and interpretation.
22. In the present case the plaintiff was suspended by an order of the Superintendent of Police which is Exh. C. and is in the following terms
"Sr I. Habibur Rahman and Const. 445 Ausaf Ali both of Serajdikhan P.S. are placed under suspension with immediate effect i.e. from 27‑5‑53 and as it is obvious that they committed excesses at the time of searches on the villagers of Shikarpur under Serajdikhan P. S. in S. R. Case No. 54‑53.
They will stay at Police lines Lalbagh, Dacca and draw S. A. of 1/4th of pay with usual dearness allowance. Further action will be taken after the case against them is disposed of. The above order is communicated here vide Memo No. 6565 dated 27‑5‑53."
This order of suspension is dated 27‑5‑53. On the 30th of May, the first order recorded in Exh. B under date 30‑5‑53 it is found that the Additional Superintendent of Police drew up the proceed ings against the plaintiff. Thereafter it is found from the said exhibit under date 23‑7‑53 that the Superintendent of Police him self gave a personal hearing to the plaintiff. From the final order of dismissal which is also contained in the same Exh. B it is found that the Superintendent of Police himself passed the order.
23. The order recorded by the Superintendent of Police on 23‑7‑53 is in the following terms:
"Given personal hearing to the accused S. I. today. He states that charges Nos. 2 and 3 have not at all been proved (illegible) gravity of No. 1 disappeared as the charge of assault could not be proved. Finding is not based on evidence on record, P. W. 1, never said that he found household utensils, personal effects food grains, etc. scattered and damaged (illegible) of A. S. 1. In the house of Khejmat Morul and instigation given by him has been proved by evidence. The statement of P. W. 2, cannot affect delinquent S. I. as he proved nothing specific. He did not say that at time that 30 houses were searched. P. W. 3, was a search witness he stated that only 15 houses were searched. His statement has not been taken into consideration by Addl. S. P. In cross‑examination he said that after completion of 18 houses the delinquent went to the (illegible) ghat.
Statement of P. W. 4 was given under (illegible). His evidence cannot be a proof of searches of 30 houses up to that time. There was no search complaints and P. W. 1 who visited the (illegible) did not refer that 30 houses were searched. In cross‑examination he disclosed that the said A. S. I. visited the locality and might reached him that doors etc. of Khejmat Ali's houses were broken.
His explanation from para 6 to last para should be thoroughly read. The delinquent S. I. also submits a written statement for my perusal. Adjourned for orders."
From this order recorded by the Superintendent of Police it will be clear that the Superintendent of Police was thoroughly aware of the proceedings drawn up against the plaintiff and of the stage at which it had reached and also of the fact that a copy of the finding of the Additional S. P. was communicated to the plaintiff and also as to what the evidence on record was. He has, it is clear of this order, given a very patient and lengthy hearing to the plaintiff, who discussed the evidence of the different witnesses and placed his own points of view of the case. The Superintendent of Police also accepted an explanation submitted to him on the said date by the plaintiff and he specifically referred to para 6 and subsequent paragraphs of that explanation and adjourned his final orders. The final orders passed on 27‑8‑53, is as follows :‑
"I have perused the records of the proceeding. Addl. S. P. (Crime) who enquired into the proceeding has discussed the evidence on record elaborately, I accept his finding charge of abuses and assault on female inmates of the houses searched could not be satisfactorily proved. That the accused S. I. with his accompanying force extensive damage to the household utensils, personal effects and food grains of the persons whose houses were searched has been satisfactorily proved. As regards charge No. 2 it has been satisfactorily proved that houses of Aminullah, Rahman Mola and others were searched. The searches in these houses were conducted without giving any reason and that the accused S. I. searched their houses was not also noted in the case diary. Rahman Molla died a few days before the date of occurrence of Serajdikhan P. S. Case No. 1 (5) 53 under section 148/333/379/34, P. P. C. It has been clearly proved that there was no elder, male member to take part in this sort of incident but still the Rehman Molla's house was searched and extensive damages were done to the house hold effects. These searches were absolutely unnecessary and illegal.
Delinquent S. I. said in his supplementary written defence submitted at the time of personal hearing that no departmental inquiry should have been held as contemplated in P. R. B. rule 29. In this connection it might be mentioned here that a specific case was started against the delinquent S. I. and the accompanying force by one Zamirunessa wife of Khejmat Moral. A magisterial inquiry was ordered but I do not think this rule is mandatory. Moreover, complaint made by Zamirunessa forms a very minor part of the charges framed against the delinquent S. I. in proceeding charge No. 3 does not come at all under the purview of this rule. In this connection it might also be mentioned in the first week of June, and inquiry into the proceeding was completed in the first week of July. So I do not think he can take shelter under this section to stay the final order on this proceeding.
The delinquent S. I. was appointed on 3‑1‑50. He should have been confirmed long ago had been found good enough for confirmation. His record shows that he had been kept as a probationer uptil now: I, therefore, do not consider him fit to be retained in the service as he is not likely to make an efficient policeman. I, therefore, dismiss him from service with effect from 28‑8‑53: He shall not get any pay or allowance for the period under suspension except that he has already drawn."
It is again made clear that the Superintendent of Police had thoroughly gone into the matter, scrutinised the evidence ‑and accepted the findings of the Additional Superintendent with regard to the innocence of the appellant on one Oarge and the guilt on another, The order of dismissal as it seems to us was based on charge No. 3 which relates to non‑entry of searches of 15 houses made by the plaintiff in the general diary.: The S. P. also referred to the service book of the plaintiff in taking into consideration the quantum of punishment that he seemed to have decided to impose. Mr. Hye wanted to argue from the order of suspension made by the Superintendent of Police that the S. P. was completely unaware of the proceedings that were drawn up by the Addl. S. P. For this he relied on the sentence occurring in the order of the Superintendent of Police under date 27‑5‑53 which reads:
" . . Further action will be taken after the case against them is disposed of."
From what is found in the orders of the Superintendent of Police under dates 27‑5‑53, 27‑8‑53 it becomes difficult for us to agree with Mr. Hye that the Superintendent of Police was un aware of the proceedings drawn up by the Addl. S. P., rather the initial order of suspension and the line occurring therein upon which Mr. Hye relies in respect of his point, if considered in its proper perspective, it will be clear that although the Superintendent of Police on the 27th of May, 1953, recorded that further action will be taken after the case against the delinquent was disposed of, yet he had approved of the action of the Addl. Superintendent of Police for holding the enquiry and be passed an order based on the findings of the Addl. S. P. and also upon his own appreciation and analysis of the evidence on record. Although there is no order recorded in the order sheet to the effect that the S. P. directed the Addl. S. P. to draw up the pro ceedings yet it becomes difficult in the facts and circumstances of the Case to hold, that the proceedings were not drawn up at the instance and under orders of the Superintendent of Police him self. We are unable to hold in the present case on the facts revealed, that there was no approval of the S. P. in drawing up proceedings against the delinquent by the Additional S. P., specially from the reading of the orders dated 27‑5‑53 and 27‑8‑53 passed by the Superintendent of Police. The only point that may be raised is that as to whether an approval at the time of the initiation of the proceedings and an approval subsequent thereto stand on the same footing. We find no difference in the two because once the approval is found the moment the approval is given whether at a subsequent date or not it must relate back to the initiation of the proceeding. In the present case we are convinced from the records that the approval given by the Superintendent of Police of the drawing up of the proceedings even in the absence of a written order to that effect, as has been complained of by Mr. Hye was of a stronger nature than if there would have been only an initial in the proceeding by the S. P. to which Mr. Hye as he himself admitted could not complain, if it was so. We would say that in the present case we find an active working of the mind of the S. P. in the actions taken from the 27th of May, up, to the 27th of August 1953 including his and the Addl. S. P.'s contributions in the entire proceedings. It is also difficult to hold that the Addl. S. P. would go on holding enquiries against a delinquent S. I. of Police for days together in the headquarters of the district in the presence of the S. P. without his knowledge and connivance and in the face of the order recorded by the S. P. on the 27th of May 1953. We are, therefore, of the opinion that there has been a sufficient compliance with the provisions of clause (o) of Regula tion 861 in the present case and as such the finding of the learned Subordinate Judge that there was no compliance of the pro visions of this regulation is not at all tenable and must, therefore, be set aside. We may add that on the basis of the finding of the Federal Court of India in the case of I. M. Lal the action of the authorities in the present case at best can be said to be irregular and not illegal.
24. The next point that Mr. Hye urged before us is in regard to granting of a proper hearing by the Superintendent of Police to his client. Mr. Hye complains that in terms of the third para graph of clause (e) of Regulation 861 his client was entitled to a show‑cause notice after the completion of the enquiry and after the authority competent to pass the order of punishment had arrived at a provisional decision in respect to the punishment sought to be imposed. This third paragraph of clause (e) of Regu lation 861 was introduced therein on 31‑3‑55. The decision in the present case was taken on 27‑8‑53. We, therefore, see no reason not to hold, that the plaintiff in the present case is not entitled to, invoke the aid of this paragraph occurring in clause (e) of Regu lation 861. He was certainly entitled to be dealt with fairly and properly and to get a proper and sufficient opportunity to defend himself even in 1953, on the principle of natural justice. The fact disclosed in the present case shows that the respondent was given a charge‑sheet which reads as follows :‑
"S. I. Habibur Rahman :‑
You are to show cause why you should not by dismissed reduced, degraded or otherwise severely punished for gross mis conduct and highhandedness in that on 3‑5‑53 between 09‑00 hours and 12‑30 hours you searched the houses of Kala Chand Moral, Sarup Ali, Taijuddin Moita Full Ch:_nd Molla Sk. Bengu Easin Baidyakar, Sk. Samad, Entazuddin Molla, Wazuddin Moral. Tamizuddin Moral, Khejmat Moral, Mofizuddin Moral, and Sarthak Ali Moral in connection with Sherajdikhan P. S. Case No. 1 dated 2‑5‑53 under sections 148/333/379/342/34, P. P. C. along with A. S. I. Abdul Malek constables 445 Yousuf Ali, 835 Abdu‑ Rahman, 888 Abdul Waheed Molla, 2777 Farid Mia, 1327 Ali Ahmed, 2318 Abdul Salam 787 Niranjan Chandra Dey, 1985 Abdul Kader, 1965 Mahamudullah, 1441 Abdul Hamid and 318 Abdul Malek in absence of the male inmates and during search you along with your A. S. I. and constables abused the female inmates, assaulted them and damaged the household utensils, personal effects and food grains, etc.
(2) That you also necessarily; and illegally searched the house of Amin Molla, Sk. Hossain, Sk. Jumman Rahman Molla, Momen Molla, Sk. Baban, Sk. Addab Ali, Tilak Moral, Mahendra Baedyakar, Harun Baedyaker, Hatem Ali, Amjat Ali, Akbar, Belayat Ali, Tatik Moral, Amir Moral, Lal Chand Moral, Ekdil Moral, Mansur Ali Moral and Essad Ali Moral of Shekarpur, P. S. Sherajdikhan and in course of search in their houses you also assaulted and abused the female inmates and damaged their household utensils, personal effects and food grains.
(3) That you suppressed the fact of house search of the houses of persons mentioned in paragraph 2 above in your case diary, dated 3‑5‑53."
He had sufficient notice from this charge as to the allegations made against him and even as to what punishment would be im posed if he was found guilty after enquiry. Thereafter 14 pro secution witnesses were examined in his presence and he cross -examined them at length. He was given opportunity to submit an explanation which he did on the 20th of June 1953, which is Exh. A. He was thereafter given the copy of the entire records of the enquiry including the findings of the recommendations of the Additional Superintendent of Police on the 4th of July 1953, 17 days thereafter he was given a personal hearing by the Super intendent himself to which we have already referred to. From the order recorded on the 23rd of July 1953, by the S. P. in con nection with this interview, we find that the respondent was given ample opportunity, time and scope to discuss the evidence of the different prosecution witnesses and to argue his case once again before the S. P. He was also not deprived of opportunity of giving a second explanation to the S. P. which he did on the 23rd July, 1953. A month thereafter the S. P. took the final decision upon consideration of all the evidence on record. He was also given the opportunity of adducing defence evidence and he actually examined 5 defence witnesses. From all that has been said above, it becomes difficult for us to agree with Mr. Hye that his client was not given a proper and fair opportunity, especially by the S. P., prior to the infliction of the punishment upon him.
25. This disposes of the points raised by Mr. Hye in support of the cross‑objection filed by his client.
In the result, therefore, this appeal succeeds, we set aside the judgment and decree passed by the learned Subordinate Judge and dismiss the suit and the cross‑objections filed by the respon dent. But in the facts and circumstances of the case, we do not award any costs and we direct that the parties should bear their respective costs throughout.
A. H.
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