Jharkhand High Court
Nageshwar Bhagat vs State Of Jharkhand & Ors. on 25 October, 2013
Equivalent citations: 2014 (1) AJR 28
1.
W. P. (S). No. 3728 of 2006
[In the matter of an application under Article 226 of the Constitution of India]
...........
Nageshwar Bhagat ... Petitioner
Versus
1. The State of Jharkhand
2. Director General of Police, State of Jharkhand
3. Deputy Inspector of Police, State of Jharkhand
4. Deputy Inspector General of Police, Bokaro
5. Superintendent of Police, Dhanbad
6. Nandraj Ram ... Respondents
............
For the Petitioner : M/s. Indrajit Sinha, Raunak Sahay, Suchitra Pandey
For Respondents : M/s. Vikash Kumar, Saket Upadhyay
............
P R E S E N T
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
.............
By Court The petitioner has approached this Court for quashing the
penalty order dated 16.02.2001 and appellate order dated
06.03.2003.
2. The brief facts of the case are that, on 04.02.1997 a First Information Report being Dhanbad P.S. Case No. 66 of 1997 was registered. A charge memo was issued to the petitioner on 26.02.1997 and an enquiry was initiated against the petitioner. The enquiry report dated 11.08.2000 was submitted finding the charge against the petitioner proved. The penalty order dated 16.02.2001, dismissing the petitioner from service, was passed by Respondent No.4 and the appeal preferred by the petitioner has been dismissed on 06.03.2003 and therefore, the petitioner has 2. approached this Court by filing the present writ petition.
3. A counteraffidavit has been filed on behalf of Respondent Nos.2, 4 and 5 stating as under:
11. "That it is also a fact that the petitioner was informed about the departmental proceeding but he deliberately did not appear in it, therefore, the departmental proceeding had to be conducted Ex parte. It is stated that the respondent no.4 finding the charge serious and grave passed an order dated 11.08.2000 and 16.02.2001 dismissing the petitioner from the service.
12. That it is further stated and submitted that a first information report being Dhanbad P.S. Case No. 66/97, under Section 409 was instituted as against the petitioner who absconded and as a result his movable and immovable properties were attached.
13. That it is further stated and submitted that respondent no.2 by an order dated 6.3.2003 has also dismissed the appeal of the petitioner by reasoned order.
14. That it is further stated and submitted that yardstick or mode of proof in both departmental and criminal proceeding are different. In the former, the rule of probabilities are taken into account, while in the later the concept "beyond all reasonable doubt" is considered. Hence the finding of one does not affect the finding of other. Further pendency of criminal case is not impediment under the law and proceed in departmental proceeding.
15. That it is also important to mention here that as per Police Manual Rule Part3, page49, a para 10 clearly says that if the delinquent is absconder, it shall not be an impediment in the departmental proceeding."
4. When the matter was listed on 30.08.2013, the following order was passed, "Learned counsel for the respondents is directed to seek instruction whether the appeal preferred by the petitioner was dealt with by Deputy Inspector General of Police and order dated 06.03.2003 has been passed by the same Deputy Inspector General of Police or by 3. the Director General of Police.
Call the matter on 13.09.2013."
5. Again on 13.09.2013, the following order was passed, "The respondents are directed to file an affidavit bringing on record the original order passed by the Additional Director General of Police which has been approved by the Director General of Police. Call the matter after one week."
6. A supplementary counteraffidavit dated 27.09.2013 has been filed on behalf of Respondent No.2, bringing on record the recommendation dated 03.02.2003 which was approved by Director General of Police on 10.02.2003, stating as under:
4. "That it is humbly submitted that after receiving the memo of appeal, the office of the Director General of Police vide letter no. 1597 dated 04.09.2001 directed the Deputy Inspector General of Police, Coalfield range, Bokaro to give his opinion/comment upon the matter and after receiving the same, the concerned file with detailed noting was placed before the Additional Director General of Police on 21.12.2002.
5. That it is humbly submitted that on perusal of the concerned file and noting therein, the Additional Director General of Police asked some queries on 16.01.2003 and again the said file was placed before him on 03.02.2003 and finally the said authority recommended for rejection of the appeal of the petitioner on 10.02.2003 which was approved by the Director General of Police on 11.02.2003 and the same has been communicated to the petitioner vide memo no. 529 dated 06.03.2003.
6. That it is humbly submitted that in view of the aforementioned facts and circumstances, the writ petition is liable to be dismissed."
7. Heard counsel for both the parties and perused the documents on record.
8. Mr. Indrajit Sinha, learned counsel for the petitioner assisted 4. by Mr. Raunak Sahay and Ms. Suchitra Pandey has contended that the appellate order is liable to be quashed because it does not disclose application of mind by the appellate authority. It is apparent from the supplementary counteraffidavit filed on behalf of Respondent No.2 that the appeal of the petitioner was dealt with by the Additional Director General of Police, who has recorded his finding on 03.02.2003 and the concerned file was submitted to the Director General of Police, who approved the conclusion arrived at by the Additional Director General of Police. He has further submitted that the approval of the Director General of Police has been communicated to the petitioner by the Deputy Inspector General of Police by order dated 06.03.2003 and since the Director General of Police could not have delegated his power, the appellate order is liable to be quashed. He has relied on decision in "Sahni Silk Mills (P) Ltd. and another v. Employees' State Insurance Corpn.", reported in (1994) 5 SCC 346.
9. Per contra, Mr. Saket Upadhyay, learned counsel appearing for the respondents has submitted that the petitioner all along was an absconder. He did not participate in the enquiry proceeding and therefore, the matter does not require any interference by this Court. He has further submitted that since, both the Additional Director General of Police and the Director General of Police are holding the same rank of Inspector General of Police and thus, this is not a case in which power was delegated to a subordinate officer 5. and therefore, no infirmity can be found in the order passed by the Director General of Police which was communicated by the Deputy Inspector General of Police by order dated 06.03.2003.
10. The maxim 'delegatus non potest delegare' has been succinctly explained in the Halsbury's Laws of England, 4th Edn., Vol.I as under, "In Halsbury's Laws of England, 4th Edn., Vol. I, in respect of subdelegation of powers it has been said:
"In accordance with the maxim delegatus non potest delegare, a statutory power must be exercised only by the body or officer in whom it has been confided, (H. Lavender & Son Ltd. v. Minister of Housing and Local Government) unless subdelegation of the power is authorised by express words or necessary implication (Customs and Excise Comrs. v. Cure and Deeley Ltd. and Mungoni v. Attorney General of Northern Rhodesia). There is a strong presumption against construing a grant of legislative, judicial, or disciplinary power as impliedly authorising subdelegation; and the same may be said of any power to the exercise of which the designated body should address its own mind. Allam & Co. v. Europa Poster Services Ltd. ..."
11. In "Sahni Silk Mills (P) Ltd. and another v. Employees' State Insurance Corpn.", reported in (1994) 5 SCC 346, the Hon'ble Supreme Court, while taking note of the maxim, has observed thus,
12. "..................... The maxim delegatus non potest delegare was originally invoked in the context of delegation of judicial powers saying that in the entire process of adjudication a judge must act personally except insofar as he is expressly absolved from his duty by a statute. The basic principle behind the aforesaid maxim is that "a discretion conferred by statute is prima facie intended to be exercised by the authority on which the statute has conferred it and by no other authority, but this intention may be negatived by any contrary indications found in the language, scope or object of the statute". (Vide John Willis, "Delegatus 6. non potest delegare, (1943) 21 Can. Bar Rev. 257,
259)."
12. On a perusal of the documents on record, I find that the petitioner had submitted his appeal memorandum before the Director General of Police and the appellate order has been communicated to the petitioner by the Deputy Inspector General of Police by order dated 06.03.2003. The relevant extract of the original record of the case which was filed by the Respondent No.2 along with affidavit dated 27.09.2013 would disclose that the appeal memorandum of the petitioner was dealt with by the Additional Director General of Police and he recorded his conclusion that the appeal may be dismissed and submitted the file to the Director General of Police on 10.02.2003. The Director General of Police has concurred with the findings and conclusion of the Additional Director General of Police on 10.02.2003 and thereafter, the appellate order was communicated to the petitioner by the Deputy Inspector General of Police by order dated 06.03.2003.
13. While dealing with the appeal of the delinquent employee, the Director General of Police discharges a quasijudicial function. He has to apply his mind and arrive at an independent conclusion. The record would disclose that the Additional Director General of Police concluded that the appeal may be dismissed merely by stating that the plea raised in the Appeal Memorandum are not based on facts. The Director General of Police simply concurred 7. with the conclusion of the Additional Director General of Police. There is nothing on record disclosing application of mind by the Director General of Police.
14. In "Narinder Mohan Arya Vs. United India Insurance Co. Ltd. and others", reported in (2006) 4 SCC 713, the Hon'ble Supreme Court has observed as under,
36. "The order of the Appellate Authority demonstrates total nonapplication of mind. The Appellate Authority, when the Rules require application of mind on several factors and serious contentions have been raised, was bound to assign reasons so as to enable the writ court to ascertain as to whether he had applied his mind to the relevant factors which the statute requires him to do. The expression "consider" is of some significance. In the context of the Rules, the Appellate Authority was required to see as to whether (i) the procedure laid down in the Rules was complied with; (ii) the enquiry officer was justified in arriving at the finding that the delinquent officer was guilty of the misconduct alleged against him; and (iii) whether penalty imposed by the disciplinary authority was excessive."
15. I am of the considered opinion that the appellate order dated 06.03.2003 cannot be sustained in law and is liable to be quashed and is hereby quashed. The matter is remitted back to the Appellate authority for fresh consideration within a period of eight weeks.
(Shree Chandrashekhar, J.) JHARKHAND HIGH COURT, RANCHI Dated :- 25th October, 2013 R.K. / A.F.R.