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High Court Of Madhya Pradesh
P. V. Dixit, C. J. and K. L. Pandey, J.
SHARDUL SINGH - Appellant
Versus
STATE OF MADHYA PRADESH - Respondents
Misc. Petn. 646 Of 1964
Decided On : 11/04/1965
The record showed that the petitioner was appointed Sub - Inspector of Police by the Inspector General of Police of the former Rewa State and the Inspector General of Police, Madhya Pradesh was competent to dismiss him from service. [Para 4
(2) Delegation of Powers - in judicial and administrative matters - limitations of the power - power to appoint and dismiss cannot be delegated.
Judicial power cannot, no doubt, ordinarily be delegated unless the law expressly or by clear implication permits it. But many administrative duties and functions also cannot be delegated in the absence of any statutory provision expressly or impliedly permitting the delegation.
In the case of the power of appointment to an office, which is plainly an administrative act, it cannot be doubted that if the power of appointment is given by a statute to the holder of an office, then he cannot delegate that power to another authority unless the statute expressly or by clear implication permits the delegation. If the power of appointment cannot be delegated, the power to dismiss the employee or to take disciplinary action against him cannot also be delegated. [Para 6
(3) Constitution of India - Art. 311 (2) - disciplinary action - what it means and includes - a delegate of appointing authority cannot initiate proceeding for disciplinary action against a Civil Servant,
The exercise of disciplinary powers, or the field of disciplinary action, is not confined merely to the passing by the appointing authority of an ultimate order imposing disciplinary punishment against the employee. It extends even to the very initiation of disciplinary action against a civil servant or employee by framing charges against him and holding or directing the holding of, an enquiry into those charges. The framing of charges, the holding of an enquiry into them, the suspension of the civil servant during the enquiry, the notice to show cause, are all steps in the exercise of the disciplinary powers. These steps must be taken by the disciplinary authority and not by a delegate of that authority.
In the absence of a statutory provision permitting expressly or impliedly the delegation of disciplinary powers, the disciplinary authority, if it decides that disciplinary action should be taken against a civil servant, must itself frame the charges and hold an enquiry into them or direct another authority to hold an enquiry into those charges. An authority other than the disciplinary authority has clearly no power to frame, on its own initiative, charges against a civil servant and hold an enquiry into them. AIR 1956 SC 285, 1915 AC 120, AIR 1957 SC 246, AIR 1956 Cal. 622, (1956) 3 All. ER 939, AIR 1958 SC 30 and AIR 1966 SC 447 relied on. [Para 6
Where the appointing authority of the petitioner Sub-Inspector of Police was the Inspector General of Police, but the departmental enquiry was initiated by the Superintendent Police, who framed charges against him and held the enquiry and the order of dismissal was passed by the Inspector General of Police, the enquiry and the order of dismissal passed in pursuance thereof was illegal and was not in conformity with the requirements of Art. 311 (2). Neither Regulation No. 228 of the M.P. Police Regulations nor the Civil Services (Classification, Control and Appeal) Rules empower the Superintendent Police to initiate or conduct such enquiry and the order of dismissal cannot be sustained. [Paras 7, 8 & 9
( 1 ) IN this case the petitioner, who was a Sub-Inspector of Police, seeks a writ of certiorari for quashing an order dated the 30th November 1963 of the Inspector general of Police dismissing him from service. The order of the Inspector General of Police was upheld in appeal by the Government, and it writ is sought for quashing that order also.
( 2 ) THE petitioner's dismissal was as a sequel to a departmental enquiry held against him on the charges that on 24th June 1962 when the constables detailed at Korandha border for checking smuggling of rice into Bihar State intercepted and seized twenty-two pony-loads of rice which was being taken across the border, the petitioner forced the constables to release the rice under the threat of dire and serious consequences; that he suppressed information about this crime of smuggling; and that he also, under threats of harassment and vengeance, forced the constables to write out false duly certificates and thus abused his position. The departmental enquiry was initiated and held by the Superintendent of Police. Surguja; the charges were also framed by him. After the conclusion of the enquiry, the Superintendent of Police sent his report finding the petitioner guilty of the charges to the Deputy Inspector General of Police. Raipur, with the comments of the District Magistrate on his report. The Deputy Inspector General of Police in his turn submitted the report of the Superintendent of Police, with his own comments thereon, to the Inspector General of Police. On 9th September 1963 the inspector General of Police issued a notice to the applicant stating that on a perusal of the record of the departmental enquiry he had provisionally reached the conclusion that the charges against the petitioner had been proved, and asking him to show cause why he should not be dismissed from service. The petitioner sent his reply to the show-cause notice denying the charges. The explanation offered by the petitioner did not convince the Inspector General of Police, who thereupon passed the impugned order dismissing the petitioner from service. ( 3 ) THE applicant contends that his dismissal from service is invalid for three reasons, namely, first, as he was appointed as Sub-Inspector by the Government, his dismissal from service by the Inspector General of Police, an authority subordinate to the Government, was contrary to Article 311 (1) of the Constitution; secondly, he was not given an opportunity of cross-examining some of the witnesses who gave evidence in support of the charges framed against him and of producing some witnesses on his behalf; and, thirdly, the departmental enquiry held by the Superintendent of Police on charges framed by himself was a nullity as the Superintendent of Police not being the disciplinary authority in regard to him, he had no power to initiate any departmental enquiry against him; and that consequently the notice to show cause given by the Inspector General of Police and the ultimate order passed by him dismissing him (the applicant) from service were invalid.
( 4 ) THERE is no substance in the contention that the Inspector General of Police was not competent to dismiss the petitioner from service and that the applicant was not given a reasonable opportunity of defending himself at the departmental enquiry. The record shows that the petitioner was appointed as a Sub-Inspector in 1946 by the Inspector-General of Police of the former Rewa State. That being so, the Inspector General of Police, Madhya Pradesh, was clearly competent to dismiss him from service, and it cannot he contended that the order dismissing the petitioner from service was passed by an authority subordinate to that by which he was appointed. It is also clear from the record that the applicant was given full opportunity of cross examining the witnesses examined in support of the charges against him and also of leading his own evidence in defence. Shri Sen, learned counsel appearing for the
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