Allahabad High Court
Kedar Nath Yadav vs State Of U.P. And Ors. on 17 May, 2005
Equivalent citations: 2005(3)ESC1955
Author: Jagdish Bhalla
Bench: Jagdish Bhalla
JUDGMENT Ajoy Nath Ray, C.J.
1. The appeal is taken up and summarily disposed of.
2. We have heard the arguments on law from both sides for two days and since the matter is essentially a legal one, the appeal is ripe for final disposal by us.
3. The appeal is from the order passed by an Hon'ble Single Judge on the 11th of April, 2005, whereby his Lordship was pleased to dismiss the writ petition of the appellant-writ petitioner.
4. The facts of this case, so far as the legal point is concerned, lie within a very brief compass. By reason of the order passed in the department, which was impugned in the writ petition, the appellant-writ petitioner was deprived of the balance pay during the period of one year, when he was under suspension (from 14.12.1990 to 4.1.1991).
5. The writ petitioner has now retired. However, the adverse order will still subsist and operate against him unless he is successful in the appeal.
6. The charge against the writ petitioner was with regard to four magazines only, which were found short out of a total number of nearly 500, which were in his custody. The charge in the department was of embezzlement of those four items.
7. The writ petitioner was prosecuted in the Criminal Courts also on the very same charge; the writ petitioner was first acquitted and discharged on 7.2.1992 by the trial Court. However, the State came up on a revision and retrial was ordered. After the retrial, the writ petitioner was again acquitted on the 1st of October, 2003. This time, the judgment clarified that the acquittal was on the basis of the giving of the benefit of doubt to the writ petitioner.
8. In the meantime however, during the two acquittals, which the writ petitioner was successful in obtaining, the departmental proceedings continued; the Superintendent of Police on the 6th of May, 1995 passed an adverse order against the writ petitioner. The departmental appeal was disposed of on the 4th of January, 1997 and on the 31st of January, 1998 the order depriving the writ petitioner of his pay was passed.
9. The appellant argued before us that according to two Police Regulations, which according to the appellant were at all material times (and still are) in force, the department had no jurisdiction to enter a substantial finding different from that entered by the Criminal Courts. One of the Regulations requires that if the matter is subjudice, the departmental inquiry should not progress until the matter is decided before the appropriate authority. This is Regulation 492 of the Police Regulations. The other Regulation is the very next one, i.e. Regulation 493, which requires that if the charge in the department is the same as the charge before the judicial authority, then and in that event, the department should decide the matter in exactly the same manner as the judicial authority had done.
10. Sub-regulation (c) of Regulation 493 was particularly relied upon, as that is the sub-regulation in point.
11. In that sub-regulation, there is permission for the department to proceed on a different type of charge than might have been decided upon by the judicial authority, i.e., if the criminal charge is for theft and the Constable has been acquitted, the department would be entitled nonetheless to proceed for the loss of the same item on charges, say, of negligence.
12. But this is not the case here; embezzlement was the charge before the Criminal Court and embezzlement was the charge before the department also.
13. Moreover, the writ petitioner has been bringing to the notice of the department and the writ Court these two Regulations from the very beginning constantly, again and again. The matter, thus, has to be decided fairly and squarely.
14. The two Regulations mentioned above are set out below :
492. Whenever a police officer has been Judicially tried, the Superintendent must await the decision of the judicial appeal, if any, before deciding whether further departmental action is necessary.
493. It will not be permissible for the Superintendent; of Police in the course of a departmental proceeding against a Police Officer who has been tried judicially to re-examine the truth of any facts in issue at his judicial trial, and the finding of the Court on these facts must be taken as final.
Thus, (a) if the accused has been convicted and sentenced to rigorous imprisonment, no departmental trial will be necessary, as the fact that he has been found deserving of rigorous imprisonment must be taken as conclusively providing his unfitness for the discharge of his duty within the meaning of Section 7 of the Police Act. In such cases the Superintendent of Police will without further proceedings ordinarily pass an order of dismissal, obtaining the formal order of the Deputy Inspector General when necessary under paragraph 479 (a). Should he wish to do otherwise he must refer the matter to the Deputy Inspector General of the range for orders.
(b) If the accused has been convicted but sentenced to a. punishment less than of rigorous imprisonment a departmental trial will be necessary, if further action is thought desirable, but the question in issue at this trial will be merely (1) whether the offence of which the accused has been convicted amounts to an offence under Section 7 of the Police Act, (2) if so, what punishment should be imposed. In such cases the Superintendent of Police will (i) call upon the accused to show cause why any particular penalty should not be inflicted on him (ii) record anything the accused Officers has to urge against such penalty without allowing him to dispute the findings of the Court, and (iii) write a finding and order in the ordinary way dealing with any plea raised by the accused officers which is relevant to (1) and (2) above.
(c) If the accused has been judicially acquitted or discharged, and the period for filing an appeal has elapsed and/or no appeal has been filed the Superintendent of Police must at once reinstate him if he has been suspended; but should the findings of the Court not be inconsistent with the view that the accused has been guilty of negligence in, or unfitness for, the discharge of his duty within the meaning of Section 7 of the Police Act, the Superintendent of Police may refer the matter to the Deputy Inspector General and ask for permission to try the accused departmentally for such negligence or unfitness."
15. If these two Regulations are applicable to the writ petitioner's case, then and in that event, there can be no doubt that the department proceeded against these Regulations and thus, the punishment order against the writ petitioner cannot be upheld.
16. On behalf of the respondents, though this point of law was not taken in the Court below and though this point of law was the only point taken in resisting the appeal before us, it was urged that these Regulations have, in fact, been repealed by subsequent framing of rules. Reliance was placed upon the 1991 Rules in this regard, which are called as the U.P. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules, 1991 (hereinafter referred to as 'the 1991 Rules').
17. These Regulations have been framed in exercise of powers under certain sections of the Police Act of 1861, notably Section 7. The preamble of the Rules reads as follows and is extremely important :
"In exercise of powers under Sub-sections (2) and (3) of Section 46 read with Sections 2 and 7 of the Police Act, 1861 (Act No. 5 of 1861) and all other power enabling him in this behalf and in supersession of all existing rules issued in this behalf, the Governor is pleased to make the following rules with a view to regulating the departmental proceedings, punishment and appeals of the Police Officers of the subordinate ranks of the Uttar Pradesh Force".
18. The argument was made that the preamble clearly mentions supersession of all existing Rules.
19. The Regulations, which we have mentioned above, occur in Chapter-XXXII of the Police Regulations. These Police Regulations are a handbook. Different Regulations have different sources of origin. Some of these Regulations are notifications, and usually a handbook containing the Police Regulations, will give in the footnote the details of the notifications of which the result are the particular Regulations.
20. The entirety of Chapter XXXII was, however, a result of an exercise of statutory rule-making powers, and the said rule-making power was again contained in Section 7 of the Police Act, 1861.
21. It is not necessary to set out either Section 2 or Section 7 or Section 46 of the Police Act under which the power has been exercised in regard to framing of the Chapter-XXXII of the Regulations as well as the 1991 Rules. It can be taken as a common ground that the Regulations and Rules have been framed by the competent authority, under substantially the same sections, once before the promulgation of the Constitution and once about 31 years thereafter, operating in the same territory and drawing the source of power from the same sections and the same Act.
22. One of the principal arguments made for the respondents was that the wording of the preamble is sufficiently clear to indicate that all Rules in regard to departmental proceedings, punishments and appeals were being repealed and that the 1991 Rules were being substituted in place thereof.
23. For the purpose of showing that the word "supersession" means practically the same thing as a repeal, the respondents relied upon the case of State of Rajasthan and Ors. v. Swaika Properties and Anr., .
24. The case of Kerala Education Bill, AIR 1958 SC 956 was relied upon by them and paragraph 19 of the said judgment was placed before us to show that the preamble of an Act (and therefore of a set of Rules) is a guide and is a very good guide to legislative policy and intent. For the same purpose, the case of Bhatnagar, was relied upon and paragraph 11 of the said judgment was placed before us.
25. We have no doubt in our mind that the preamble can be relied on as a Rule itself within the body of the 1991 Rules and is therefore, to be given full effect. Simply because the preamble is not numbered, it does not mean that it does not have the same force as a numbered rule in the body. We are also in agreement that the word "supersession" is the same as the word 'repeal' in this context, and it is not necessary to refer to Dictionaries in this respect. The issue here is not whether the 1991 Rules were intended for a repeal or whether it did, in fact, by express words effect such repeal. The issue is whether the repeal was of the entire Police Regulations or only of some parts of it.
26. That the 1991 Rules succeeded in repealing some parts of the Police Regulations is again undeniable. One need merely refer to the Division Bench judgment of this High Court given in the case of Nurul Hasan v. Senior Supdt. of Police, Lucknow and Anr., 1985 (3) LCD 208. Paragraph 51 of the said judgment can usefully be referred to. This judgment refers to Regulation 496 occurring in the same Chapter-XXXII of the Police Regulations. The said Regulations deal with the power of suspension. These are in very strict and outdated terms requiring the Police Officers not to be suspended at all until the judicial authority before whom the same charge is being tried is pronounces upon it. Their Lordships observed that even in cases of very serious offences the Regulation would prevent the Police Officers from being suspended. Their Lordships also made observations about the differing situation obtaining amongst the Police Officers between the times when the Regulations were framed and times when their Lordships were deciding the matter.
27. If Rule 17 of the 1991 Rules is looked into, it would be seen that the power of suspension is now no longer limited and is exercisable even during the period the Criminal Court might be deciding the acceptability or otherwise to the accusation levelled against the Police Officers.
28. When there is an express Rule, which can be pointed out in the 1991 Rules, which occupies the same field as a Regulation in Chapter-XXXII, then we have no doubt in our mind that the later Rules will substitute the old Regulations.
29. It was argued by the respondents that the 1991 Rules obliterate the Police Regulations as a whole. Whether the later set of Rules repeals the earlier set of Rules, is a question to be determined in the facts and circumstances of each case where this type of problem turns up. The simplest manner in which the rule framing authority can set the controversy at rest, is by inserting a Rule, which is usually to be found at the end of the set of rules, wherein it is mentioned that such and such Rules of such and such years are repealed or that such and such entire set of Rules framed in such and such years is repealed.
30. In the 1991 Rules, there is no such repealing Rule anywhere to be found.
31. The other manner of repealing of an entire body of Rules is by necessary implications. In the usual state of things, without an express repealing rule, the Courts assume that the later set of Rules does not repeal the earlier set and that the two continue to co-exist. This can be called the presumption against implied repeal. Such a presumption exists most assuredly in Indian Law now and has been recognised in several Supreme Court decisions. One of those given by Mr. Amit Bose, learned Counsel appearing on behalf of the appellant is the case of Kedia Leather, . In paragraph 13 and in the subsequent paragraphs, it is quite clearly laid down that there is a presumption against a repeal by implication. Several authorities, again of the highest Court, are mentioned by the Supreme Court in that paragraph.
32. It might be thought, that if there is no express Rule repealing the earlier set, then and in that event, it should be quite easy for the Court to say that both sets of Rules go on coexisting and in case of any conflict, the Court will simply prefer the later Rule on the subject in preference to the earlier Rule. It is a logical, but not quite the correct legal way of thinking. In paragraph 15 of the said judgment, it was said that the doctrine of implied repeal, or the doctrine against implied repeal was not intended to create any confusion by retaining conflicting provisions in the above manner. The law is, that if the latest set of Rules substantially covers the entirety of the field covered by the earlier set, although not each and every Rule, then and in that event, the laws of interpretation require the Court to imply that the entire set of earlier Rules has been repealed. This is to prevent confusion and to engender certainty. The test to be applied is, whether the entirety of the field is substantially covered and no important aspects are left out in the body of the currently framed Rules.
33. The case of Abdul Kadir, given by the respondents, mentions this principle in paragraph 11 of the judgment. The appellant also relied on the case of Harshad S. Mehta, and placed before us portions of the judgment from paragraphs 29 to 31. Placitum (e) on page 272 in paragraph 31 mentions that it is possible that the inconsistency of the old Rules and the new Rules operates only on a part of a Statute.
34. The doctrine of presumption against implied repeal is also taken note of in the Harshad S. Mehta's case (supra). If only parts of the Rules are inconsistent then the Court prefers the later Rules to the older ones on the basis of the maxim leges posteriores priores contrarias abrogant. This maxim is mentioned in paragraph 30 of the said judgment. If it is a case of conflict between the two sets only in parts and pockets, then the doctrine of total repeal does not come into operation. On the one side of the spectrum, we have the Abdul Kadir situation, i.e. the latest set of Rules covers substantially the whole field, and only one or two small points are outstanding; here the doctrine of implied repeal comes into operation to prevent confusion and to engender certainty. On the other side of the spectrum, we have the situation mentioned in the Harshad S. Mehta's case (supra) where only part of the later written law conflicts against the corresponding part of the earlier written law. In that case, there will be no total repeal of the entirety of the earlier set of rules. Only the parts and pockets earlier prevailing will be replaced by the parts and pockets now supplied. The Courts have to determine in cases of controversy as to where in this spectrum the two contending sets of Rules lie; whether there has been a repeal of a particular Rule only; some entire Chapter or Parts only or the entire Rules itself. The possibilities are endless, but it is only the guiding principles, which are of importance.
35. The Kedia Leather case (supra) mentions in paragraph 15 that it is very necessary to scrutinize the terms and consider the true meaning and effect of the earlier Act.
36. What is said in relation to an Act, is applicable in relation to Rules also. We would respectfully add that it is equally necessary to scrutinize the details of the later set of Rules. It is only by getting a grip over the entirety of the two sets of rules that the Court can come to a true and proper conclusion as to what is repealed and what is not. When this is the guiding principle, quite clearly, we cannot accede to the submission made on behalf of the respondents that simply by looking at the preamble of the 1991 Rules and simply by construing the words "in supersession of all existing Rules issued in this behalf" we can conclude there and then that the Police Regulations earlier frame are all repealed, that would be too snap a decision to be correct in law.
37. The words "in this behalf might refer to the rule-making power under the several sections of the Police Act or, in the alternative, those might refer to the Rules actually made in 1991. If the words refer to the rule-making power itself, then the earlier Rules made under the said sections of the Police Act are all repealed. If those words refer to the Rules framed in 1991 and the field covered thereby only, then only those Police Regulations will stand repealed, which are replaced by different and inconsistent Rules in 1991.
38. We are not of the opinion that the 1991 Rules substantially cover the entire gamut of Regulations mentioned in Chapter-XXXII of the Police Regulations. It certainly covers parts and pockets and one of those parts and pockets is Regulation 496, which is replaced by the new Rule 17, as we have mentioned above.
39. We have to consider whether Regulations 492 and 493 are also in one of those parts and pockets replaced by the 1991 Rules.
40. These Regulations are substantially Regulations of procedure in disciplinary inquiries. Whether the disciplinary inquiry is to continue at all or not, in what mariner the authority-in-charge of the disciplinary inquiry will decide the matter, these are the subject matter of Regulations 492 and 493. Regulation 493 provides a sort of departmental res judicata. In Courts of law, res judicata is part of the Code of Civil Procedure. In the Police inquiries, this part of the Civil Procedure Code is, in a manner of speaking, replicated in Regulation 493. A Regulation like 493, similarly like the principle of res judicata, has the great virtue of avoiding conflict of decisions. There is nothing unconstitutional in Regulation 493; there is nothing, which is practically archaic in this Regulation either. If the charge is of such a nature that the departmental inquiry is sufficient unto the purpose, like may be, the loss of four magazines, then it is not obligatory upon the police authority to lodge a complaint and start the criminal prosecution at all. It would be open to them to conduct the disciplinary inquiry on their own and reach a finding as and when they please. Regulation 493 would not hurt then at all.
41. On the other hand, if the charge is of an extremely grave nature, it would not do to supersess or stifle a criminal prosecution. In that case, a suspension might be imposed, and a criminal trial might well proceed, until a final hearing in the department is given with the criminal Court's decision already on record. Once the criminal case has been tried out, it is not unjust that the department take the same view as does the Criminal Court.
42. The reasons given in the Nurul Hasan case (supra) include that the absence of the power of suspension until the criminal verdict is archaic and is absolutely unsuited to the present day. The reason is not applicable similarly to the context of forcing the disciplinary authority to decide in the same manner as the criminal Courts do.
43. Of course it is possible for the rule-making authorities to do away with Regulation 493, but until that is done, it has to be given full effect; unless of course, in the 1991 Rules there is a Rule, which can be said to operate in the same field. We have searched the Rules in vain to find one Rule, which can be a suitable contender to Regulation 493 in the matter of taking up of the position of the guiding Rule in this regard.
44. The nearest we have come to is Rule 14, which talks of procedure for conducting departmental proceedings. The Rule is set out below :
"14. Procedure for conducting departmental proceedings.--(1) Subject to the provisions contained in these Rules, the departmental proceedings in the cases referred to in Sub-rule (1) of Rule 5 against the Police Officers may be conducted in accordance with the procedure laid down in Appendix 1.
(2) Notwithstanding anything contained in Sub-rule (1) punishments in cases referred to in Sub-rule (2) of Rule 5 may be imposed after informing the police officer in writing of the action proposed to be taken against him and of the imputations of act or omission on which it is proposed to be taken and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal.
(3) The charged police officer shall not be represented by counsel in any proceedings instituted under these rules."
45. We do not find anything in this Rule, which is in conflict with Regulation 493. Appendix 1 relates to charge-sheets being clear, examination of witnesses, etc. There is no guidance as to the way the departmental authority is obliged to decide a matter.
46. As such, we are of the clear opinion that the said Regulation is not repealed specifically or impliedly by any part or portion of the 1991 Rules which is inconsistent with the said Regulation 493, and the said Regulation is not repealed in a body with the entirety of Chapter-XXXII by application of the principle of implied repeal either. That is because the 1991 Rules are not comprehensive enough to bring in the doctrine of total repel by implication. Even this single Regulation 493 is so important and so occurring again and again in matters of departmental inquiry, that by reason of the presence of this Regulation only it would be possible to argue that, the 1991 Rules do not seek to cover the entirety of the field in relation to disciplinary inquiry and punishment. The preamble also does not seek, even with the words that it uses, to cover the entire field, it merely mentions that it seeks to regulate, only to regulate, the disciplinary proceedings and the matters of punishment. Such regulation is quite possible by operating on the existing Police Regulations in Chapter-XXXII and doing away with only those Regulations, which are in conflict with the later express Rules.
47. We were shown an unreported judgment of an Hon'ble Single Judge given in the case of Shiv Lal Yadav in Civil Miscellaneous Writ Petition No. 6805 of 2001 (S/S), the judgment and order being dated 11.12.2001. His Lordship was there concerned with the same Rule regarding suspension, which we have mentioned above, i.e. Rule 17. In dealing with that limited matter of power of suspension, his Lordship said that "it is provided in the said 1991 Rules that those Rules are framed in supersession of all existing Rules in that behalf.
48. With the greatest of respect, this is not a correct reading of the preamble. The word used is "this" and not "that". It is not a mere petty distinction of words. If the word "that" is substituted for the word "this" in the preamble, it might well mean that the reference would be to the rule-making power itself and not to the actual Rules framed in 1991.
49. We are of the respectful opinion that his Lordship's decision given in this regard, i.e., that the 1991 Rules abrogate totally all earlier Rules framed under the Police Act, 1861, is not correct and is not good law.
50. The inescapable conclusion, therefore, is that the authorities were bound to follow Regulations 492 and 493, the 1991 Rules notwithstanding. They did not do so and they proceeded to decide differently on the charge of embezzlement of four magazines although the writ petitioner-appellant had been acquitted on the same charge in the Criminal Courts. The authorities have thus brought on record an error of law by acting contrary to existing Regulations; such an error on the face of the record can and should be corrected by the writ Court. An acquittal is an acquittal, whether on the benefit of doubt or not. One cannot go behind the acquittal, but must ordinarily accept it on its face value.
51. The order under appeal before us is, thus, set aside. We allow the appeal; the writ petition is also allowed. The disciplinary proceedings culminating in the order imposing punishment dated 6.5.1995 merging in the appellate order dated 4.1.1997 and the order imposing punishment dated 31.1.1998, are all quashed. The writ petitioner-appellant will be treated to have been exonerated absolutely in the departmental proceedings. All benefits and consequential benefits will be accorded to him on that basis, as expeditiously as possible, including payment of all arrears, if any, within a period of a fortnight from date hereof.
No order as to costs.