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High Court Of Madhya Pradesh
K. L. Shrivastava, J.
KRISHNANARAYAN SHIVPYARE DIXIT
Versus
STATE OF M P
Decided On : Mar 29,1985
The rule of master and servant in its original obsolete form, to bring it in tune with vastly changing socio-economic conditions and mores of the day, has been eroded by judicial decisions and legislation particularly in its application to persons in public employment to whom the constitutional protection of Articles 14, 15, 16 and 311 is available.
The principle of doctrine of pleasure contained in this Article is subject to the guarantee given by Article 311. Except to the extent of guarantee contained in Article 311 and the provisions of the rules made under Article 309, the common law right of the Government to terminate the services of its servant continues. The result is that whenever a Government servant claims that the termination of his services is void and he is entitled to continue in service, he must show the breach of any of these provisions in order to substantiate his claim that the termination of his services is void and ineffective. AIR 1979 SC 429 & 1979 JLJ 632 relied on. [Para 10
(2) Civil Services (Classification, Control and Appeal) Rules, 1966 (M. P.)-R. 3 (1) (d)-operation is not excluded in respect of subordinate staff of the Police Department-Police Regulations-Reg. 213.
(3) Police Regulations-Reg. 213-does not exclude from departmental enquiries of subordinate staff of the Police Department, the operation of rule 3(1) (d) of the M. P. Civil Services (Classification, Control and Appeal) Rules, 1966. [Paras 14 & 15
(4) Constitution of India-Art. 311 (1)-Assistant Inspector of Police appointing authority is Deputy Inspector General of Police-dismissal of Assistant Inspector by Superintendent of Police-violates Art. 311 (1)-Civil Services (Classification, Control and Appeal) Rules, 1966 (M.P.)-R. 8.
(5) Civil Services (Classification. Control and Appeal) Rules, 1966 (M.P.)-R. 8 (Schedule)-appointing authority for Assistant Inspector being Deputy Inspector General of Police-dismissal by Superintendent of Police-is void Constitution of India-Art. 311 (1).
An Assistant Inspector of police was dismissed by a Superintendent of Police. The appointing authority for Assistant Inspector was Deputy Inspector General of Police.
Held : The impugned order of dismissal not being by the appointing authority being in contravention of the guarantee under Article 311 (1) of the Constitution has to be struck down resting as it does on illegal and improper foundation. AIR 1963 SC 812 relied on; AIR 1970 P & H 81, AIR 1963 SC 777 discussed. [Para 18
(6) Civil Services (Classification, Control and Appeal) Rules, 1966 (M. P)-R. 18-departmental enquiry by an authority himself having a stake in the case-cannot hold the departmental enquiry in such a case-rule of Natural Justice.
(7) Natural Justice-rules of-persons having personal stakes in matter cannot Act as a judge in the case.
The agitation giving rise to Departmental Enquiry against the petitioner and others was directed against an action of A, a Superintendent of Police. The same A without compliance of rule 18, has not only himself initiated the Departmental Enquiry but also passed the order of dismissal of the petitioner.
Held: The role of the accused or the witness and of the judge cannot be played by one and the same person and it is futile to expect when those roles are combined that the judge can hold the scales of justice even. Any person who has a personal stake in an enquiry must keep himself aloof from the conduct of the enquiry. AIR 1984 SC 1356 relied on. [Para 19
(8) Constitution of India-Art. 226-delay-matters to be considered.
Whether in a given case 'delays' should be condoned or not depends on its facts and circumstances. It is not that a writ petition under Art. 226 if filed within a period of limitation provided for a suit for similar relief cannot be rejected on account of undue delay. In every case it would have to be decided on the facts and circumstances whether the petitioner is guilty of laches and that would have to be done without taking into account any specific period as period of limitation. Where the illegality from which the order of dismissal suffers was of a great and fundamental character, delay in filing writ-petition does not take away the power of the High Court to grant relief. 1981 JLJ 109 and 1983 JLJ-SN 48 followed. [Paras 20 & 21
( 1. ) THIS petition under Article 226 of the Constitution of india filed in August 1983 is for quashing the order dated 13-2-1981 passed by the Superintendent of Police, Indore, the respondent No. 4, in the departmental Enquiry held against the petitioner and two others whereby he has been dismissed from service.
( 2. ) IT is not in dispute that at the relevant time the petitioner was holding the post of Assistant Sub-Inspector, Police at Mhow, District indore. The charges dated 25-12-1980 framed by the Superintendent of police were in respect of the activities dated 15-12-1980 of the petitioner and others directed against him in respect of the penalty of censure imposed by him on two police personnel and the action taken in two other matter public complaints. The Departmental enquiry was conducted by the respondent No. 5, the Deputy Superintendent of Police working under the respondent No. 4.
( 3. ) THE petitioner had submitted an application dated 1-1-1981 to the respondent No. 4 stating that the former has no hope of getting justice from him and his subordinates and on the facts of the case it was against the principles of natural justice that he should himself initiate the Departmental enquiry.
( 4. ) AT the conclusion of the Departmental Enquiry the petitioner was dismissed by the respondent No. 4 by the impugned order.
( 5. ) THE petitioner appealed to the Deputy Inspector General of Police indore but was unsuccessful. He also approached the Inspector-General of Police, respondent No. 2 who treating his representation as revision and ultimately dismissed it on 4-12-1981.
( 6. ) IN the petition it is contended that the charges were not accompanied by list of documents and list of witnesses, despite the demand, the same were not supplied to him, initiation of the Departmental Enquiry by the Superintendent of Police was against the principles of natural justice and the petitioner was also deprived of a reasonable opportunity of being heard.
( 7. ) THE Departmental Enquiry was challenged also on the ground that it is violative of the provisions of Articles 14 and 16 of the Constitution and Rules 9, 10, 14 and 18 of the M. P. Civil Services (Classification, Control and Appeal) Rules, 1966 (for short the Control and Appeal Rules)and also of the Regulations Nos. 214, 215 and 222 of the Police Regulations framed under the Police Act, 1961.
( 8. ) IT was lastly contended that the Superintendent of Police, Indore not being the appointing authority had no authority to impose on the petitioner the penalty of dismissal. Delay in filing the petition was explained mainly on the ground of poverty.
( 9. ) IN their return the respondents denied the submissions made by the petitioner in his petition. Denying the applicability of the Control and appeal Rules it was contended that the petition deserves to be dismissed on the ground of delay.
( 10. ) AS to the position of a Government servant Article 310 of the constitution provides as under :
"except as expressly provided by this Constitution, every person who is a member of a defence service or of a civil service of the union or of an all India service or holds any post connected with defence or any civil post under the Union, holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State. "
As pointed out in the decision in Hukumsinghs case, 1979 M P L J 625=1979 J L J 632. the principle of doctrine of pleasure contained in this Article is subject to the guarantee given by Article 311 ibid. Except to the extent of guarantee contained in article 311 and the provisions of the Rules made under Article 309, the common law right of the Government to terminate the services of its servant continues. The result is that whenever a Government servant claims that the termination of his services is void and he is entitled to continue in service, he mus
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