T. V. R. Tatachari, Rajindar Sachar

( 1 ) RESPONDENT was an officiating sub-inspector. There was a complaint, of corruption against him and the S. P. held an enquiry and then passed an order of dismissal which was upheld in departmental appeal. He then filed civil suit claiming that the order was invalid for non compliance with Punjab Police Rules, Rules 16. 38 (1) and (2 ). Trial Court decreed the suit and the order was upheld in appeal. In R. S. A. the matter was referred to D. B. The D. B, found that there was non-compliance with Rule 16. 38 (1) which requires sanction of D. M. before investigation. Contention of the Government was that the D. M. had given his approval after the investigation and that was enough, and it relied upon Union of India Vs. Suraj Bhan LPA. 86-D. /65 D. / 23-5-69 (F. B.) in which it was held that the said rule was not mandatory. Respondent relied upon Union of India Vs. Ram Kishan A!r. 1971. S. C. 1402, contending that it was held in it that the rule was mandatory. The Court did not think it necessary to decide this question as it took the" view that there was noncompliance with sub-rule (2 ). Para 18 onwards the judgment is:-

( 2 ) NOW, as regards the non-compliance with Rules 16. 38 (2) the - facts already given show as per the extract of the letter dated 18-8-1959 by the Superintendent of Police mentioned earlier that even though permission was sought from the District Magistrate to initiate departmental action, it was made clear that the question of launching criminal prosecution would be taken up after taking departmental action. Now reference to Rules 16. 38 (2) will show that when a complaint established a prima 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. No doubt in the sanction given by the District Magistrate permission was only given for talcing departmental action but it was not made clear whether the question of launching criminal prosecution was kept pending as had been suggested by the Superindent of Police or had been given up. It appears to us that this is also one of the infirmities in the, order of sanction because the District Magistrate when he gives sanction under this Rule has got to make up his mind whether the matter is to be disposed of departmentally or by a judicial prosecution and cannot leave the matter in an uncertain state of affairs, without deciding which alternative to follow. The more serious infirmity in the order of sanction accorded under rule 16. 38 (2) by the District Magistrate is absence of recording of any reason why a departmental action is being preferred. A reference to the order of sanction by the District Magistrate dated 31-8-1959 shows that no reasons have been recorded at all for taking departmental action. No doubt it is mentioned that the preliminary investigation has established the fact that the A. S. I. is guilty of gross misconduct which warrants the initiation of disciplinary proceedings, but the reasons that are to be recorded by the District Magistrate as required by Rule 16. 38 (2) are for not proceeding with judicial prosecution and for proceeding departmentally as held in Nand Nandan Sarup case (FB ). In this connection we may refer to a decision by one of us (Tatachari J.) In N. N. Seth Vs. Delhi Administration etc. (C. W. 158-D of 1966) decided on 4. 9. 1970. There also the order giving sanction under Rule 16. 38 (2) was worded as follows :-

i have gone through the enquiry report. and the facts revealed justify the inititation of departmental proceedings against Inspector N. N. Seth and Head Constable Iqbal Singh, permission for which under P. P. R. 16. 38 (2) is hereby accorded. The enquiry report of Anti-corruption Branch is returned herewith"dealing with the argument about non-compliance of Rule 16. 38 (2) it was observed as under:-

the reasons which are required to be recorded under the Rule are obvious

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