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IN SUPREME COURT OF INDIA Page 1 of 33

Vs.

RESPONDENT:
BABU RAM UPADHYA

DATE OF JUDGMENT:
25/11/1960

BENCH:
SUBBARAO, K.
BENCH:
SUBBARAO, K.
GAJENDRAGADKAR, P.B.
SARKAR, A.K.
WANCHOO, K.N.
MUDHOLKAR, J.R.

CITATION:
1961 AIR 751 1961 SCR (2) 679
CITATOR INFO :
F 1961 SC 773 (5,7)
RF 1964 SC 600 (57,63,18)
F 1965 SC 868 (4)
R 1967 SC 356 (7)
RF 1968 SC 224 (3)
RF 1969 SC 903 (30)
RF 1969 SC1108 (8)
D 1970 SC 122 (12)
D 1970 SC1244 (29)
RF 1971 SC1403 (7)
F 1971 SC2111 (7)
E 1973 SC 883 (19)
RF 1974 SC 794 (13)
O 1974 SC2192 (50,51,53)
R 1975 SC 446 (10)
RF 1976 SC2433 (6)
R 1977 SC 747 (6)
R 1979 SC 52 (13)
R 1979 SC1149 (19)
RF 1980 SC2181 (104)
RF 1981 SC 711 (11)
F 1982 SC1407 (24)
R 1983 SC 494 (8)
RF 1983 SC 558 (20)
O 1985 SC1416 (43,56, TO 58)
RF 1986 SC 555 (6)
RF 1988 SC 805 (10)
D 1989 SC 811 (3,10)
RF 1989 SC1160 (30)
RF 1990 SC 820 (31)
RF 1992 SC1033 (54)

ACT:
Public Servant--Police Officer, dismissal of--Police Regula-
tions, whether mandatory--Disregard of, if invalidates
disciplinary action--Authorities empowered to take
action--If exercise Powers of Governor--Police Act, 1861 (V
of 1861), s. 7--U. P. Police Regulations, para.
486--Constitution of India, Arts. 154, 309, 310, 311.
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HEADNOTE:
The respondent was a sub-Inspector of Police. A complaint
was received by the Superintendent of Police that the com-
plainant was carrying currency notes of Rs. 650 in a bundle
when he was stopped by the respondent and his person was
searched, that the respondent opened the bundle of notes and
handed over the notes one by one to one Lalji, who was with
him and that Lalji returned the notes to him but on reaching
home he found the notes short by Rs. 250. Proceedings under
s. 7 of the Police Act were taken against the respondent on
the charge of misappropriation of Rs. 250 and he was
dismissed from service by an order of the Deputy Inspector
General of Police. The respondent filed a writ petition
before the High Court challenging the order of the dismissal
on the ground that the authorities had acted in violation of
Rule I of Para. 486 of the U. P. Police Regulation. This
rule required that every information received by the police
relating to the commission of a cognizable offence by a
Police Officer shall be dealt with in the first place under
Ch. XIV, Code of Criminal Procedure. The High Court held
that the provisions of para. 486 of the Police Regulations
had not been observed and that the proceedings taken under
S. 7 of the Police Act were invalid and illegal and
accordingly quashed the order of dismissal. The appellant
contended (i) that the complaint did not make out any
cognizable offence against the respondent and r. I of Para.
486 was not applicable in this case, (ii) that r. III of
Para. 486 enabled the authorities to initiate departmental
proceedings without complying with the provisions of r. I,
(iii) that the Police Regulations made in exercise of the
power conferred on the Government under the Police Act
delegating the power of the Governor to dismiss at pleasure
to a subordinate officer were only administrative directions
for the exercise of the pleasure in a reasonable manner and
any breach of the regulations did not confer any right or
give a cause of action to the public servant, and (iv) that
the regulations were only directory and the non-compliance
with the rules did not invalidate the order of dismissal.
680
Held, (per Sarkar, Subba Rao and Mudholkar, JJ.) that the
order of dismissal was illegal as it was based upon an
enquiry held in violation of r. I of Para 486 of the Police
Regulations.
The facts alleged in the complaint made out a cognizable
offence under s. 405 Indian Penal Code against the
respondent, and the provisions of r. I of Para . 486 were
applicable to it. A Police Officer making a search of a
person was ’entrusted’ with the money handed over by the
person searched.
Rule III of Para. 486 did not deal with cognizable offences,
it dealt with offences falling only under s. 7 Police Act
and to non-cognizable offences. Rule III did not provide an
alternative procedure to that prescribed under r. I.
The position with regard to the tenure of public servants
and to the taking of disciplinary action against them under
the present Constitution was as follows:
(i) Every person who was a member of a public service
described in Art. 310 of the Constitution held office during
the pleasure of the President or the Governor.
(ii) The power to dismiss a public servant at pleasure was
outside the scope of Art. I54 and, therefore, could not be
delegated by the Governor to a subordinate officer, and
could be exercised by him only in the manner prescribed by
the Constitution.
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(iii) This tenure was subject to the limitations or qualifi-
cations mentioned in Art. 311.
(iv )Parliament or the Legislature of States could not make
a law abrogating or modifying this tenure so as to impinge
upon the overriding power conferred upon the President or
the Governor under Art. 310, as qualified by Art. 311.
(v) Parliament or the Legislatures of States could make a
law regulating the conditions of service of such a member
which included proceedings by way of disciplinary action,
without affecting the powers of the President or the
Governor under Art. 310 read with Art. 311.
(vi) Parliament and the Legislatures also could makea law
laying down and regulating the scope and content of the
doctrine of "reasonable opportunity" embodied in Art. 311
but the said law was subject to judicial review.
(vii) If a statute could be made by Legislatures within the
foregoing permissible limits, the rules made by an authority
in exercise of the power conferred thereunder would likewise
be efficacious within the said limits.
N. W. F. Province v. Suraj Narain, A.I.R. 1949 P. C. 112,
Shenton v. Smith, (1895) A.C. 229, Gould v. Stuart, (1896)
A.C. 575, Reilly v. The King, (1934) A.C. 176, Terrell v.
Secretary of State, (1953) 2 All E.R. 490, State of Bihar v.
Abdul Majid, [1954] S.C.R. 786, Parshotam Lal Dhingra v.
Union of India, [1958]
681
S.C.R. 828, R. T. Rangachari v. Secretary of State for
India, (1936) L.R. 64 I.A. 40 and High Commissioner for
India and High Commissioner for Pakistan v. I. M. Lall,
(1948) L.R. 75 I.A. 225, referred to.
The Police Act and the rules made thereunder constituted a
self-contained code providing for the appointment of police
officers and prescribing the procedure for their removal.
Any authority taking action under the Police Act or the
rules made thereunder must conform to the provisions thereof
and if there was any violation of those provisions the
public servant had a right to challenge the order of the
authority if the rules were mandatory Paragraph 486 of the
Police Regulations was mandatory and not directory. The
rules were made in the interests of both the department and
the police officers. The word used in para 486 was "shall"
and in the context it could not be read as "may".
Hari Vishnu Kamath v. Syed Ahmed Ishaque, [1958] S.C.R. 104,
State of U. P. v. Manbodhan Lal Srivastava, [1958] S.C.R.
533 and Montreal Street Railway Company v Noymandin, L.R.
(1917) A.C. 170, referred to.
Subject to the overriding power of the President or the
Governor under Art. 310, as qualified by Art. 311, rules
governing disciplinary proceeding could not be treated as
administrative directions, but had the same effect as the
provisions of the statute whereunder they were made, in so
far as they were not inconsistent with the provisions
thereof. The Governor did not exercise his pleasure through
the officers specified in S. 7 of the Police Act, and the
Governor’s pleasure. could not be equated with the statutory
power of the officers specified An inquiry under the Act had
to be made in accordance with the provisions of the Act and
the rules made thereunder.
R. T. Rangachari v. Secretary of State for India, L.R. 64
I.A. 40, High Commissioner for India and High Commissioner
for Pakistan v. I. M. Lall, (1948) L.R. 75 I.A. 225, R.
Venkata Rao v. Secretary of State for India, (1936) L.R. 64
I.A. 55, S. A. Venkataraman V. Union of India, [1954] S.C.R.
1150 and Khem Chand v. The Union of India, [1958] S.C.R.
1080, referred to.
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Per Gajendragadkar and Wanchoo, JJ.-The provisions of para
486 were merely directory and a non-compliance therewith did
not invalidate the disciplinary action taken against the
respondent.
All public servants, other than those excepted expressly by
the Constitution, held office during the pleasure of the
President or the Governor, and no law or rule framed under
Art. 300 or Art. I54(2)(b) could cut down the content of
the pleasure tenure in Art. 310 subject to Art. 31i. The
Police Act could not stand higher than a law passed under
Art. 309 or Art. 154(2)(b) and could not cut down the
content of the pleasure tenure in Art. 310
682
The Police officers held office during the pleasure of the
Governor and the only protection they could claim was the
two guarantees contained in Art. 311.
The rules framed under s. 7 Police Act would be of two
kinds, namely (1) those which defined the jurisdiction of
the four grades of officers specified in s. 7 to inflict
particular kind of punishment on particular police officers
of the subordinate ranks-such rules would be mandatory but
they could not go against the provisions of Art. 311, and
(2) procedural rules. The procedural rules could be of two
kinds: (i) those that prescribed the manner in which the
guarantee contained in Art. 311(2) May be carried out-such
rules would be mandatory, and (ii) other merely procedural
rules-they could only be directory.
The power of the Governor to dismiss was executive power of
the State and could be exercised under Art. 154(i) by the
Governor himself directly or indirectly through officers
subordinate to him.
The officers specified in s. 7 of the Police Act were
exercising the powers of the Governor to dismiss at pleasure
and their powers were subject to the same limitations to
which the Governor was subject. Whether it was delegation
by the Governor himself or whether it was delegation by law
under Art. 154(2)(b) or by the existing law, which must be
treated as analogous to a law under Art. 154(2)(b), the
officer exercising the power of dismissal was only
indirectly exercising the Governor’s power to dismiss at
pleasure. His order also was subject to the two fetters
under Art. 311 and could not be subjected to any more
fetters by procedural rules other than those framed for
carrying out the objects of Art. 311(2).
R. Venkata Rao v. Secretary of State for India in Council,
[1936] 64 I.A. 55, referred to.
Paragraph 486 was not meant for the purpose of carrying out
the object of Art. 311(2) and could not be mandatory and
could not add a further fetter on the exercise of the power
to dismiss at the pleasure of the Governor over and above
the fetters contained in Art. 311. This rule was only meant
to gather materials for the satisfaction of the authority
concerned, whether to take action or not. As such para 486
was merely directory and a failure to comply therewith
strictly or otherwise did not vitiate the disciplinary
action.

JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 119 of 1959.
Appeal by special leave from the judgment and order dated
January 9, 1958, of the Allahabad High Court (Lucknow
Bench), Lucknow, in Civil Misc. Application No. 115 of
1955.
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683
C. B. Agarwala and C. P. Lal, for the appellants.
G. S. Pathak, Achru Ram, S. N. Andley, Rameshwar
Nath, J. B. Dadachanji and P. L. Vohra for the respondent.
1960. November, 25. The Judgment of Sarkar, Subba Rao and
Mudholkar, JJ., was delivered by Subba Rao, J., and that of
Gajendragadkar and Wanchoo, JJ., was delivered by Wanchoo,
J.
SUBBA RAO, J.-This is an appeal by special leave against the
judgment of the High Court of Judicature at Allahabad,
Lucknow Bench, allowing the petition filed by the respondent
under Art. 226 of the Constitution.
The respondent was appointed a Sub-Inspector of Police in
December, 1948, and was posted at Sitapur in June, 1953. On
September 6, 1953, the respondent went to village Madhwapur
in connection with an investigation of a case of theft. On
the evening of the said date when he was returning,
accompanied by one Lalji, an ex-patwari of Mohiuddinpur, he
saw one Tika Ram coming from the side of a canal and going
hurriedly towards a field. As the movements of Tika Ram
appeared to be suspicious and as he was carrying something
in the folds of his dhoti, the respondent searched him and
found a bundle containing currency notes. The respondent
counted the currency notes and handed them over to Lalji for
being returned to Tika Ram, who subsequently got them and
went his way. Subsequently when Tika Ram counted the
currency notes at his house, he found that they were short
by Rs. 250. Tika Ram’s case is that the bundle when taken
by the respondent contained notes of the value of Rs. 650,
but when he counted them in his house they were only of the
value of Rs. 400. On September 9, 1953 Tika Ram filed a
complaint to the Superintendent of Police, Sitapur, to the
effect that the respondent and one Lalji had misappropriated
a sum of its. 250. There is dispute in regard to the
interpretation of the complaint. On receipt of the said
complaint, the Superintendent of Police made enquiries
684
and issued a notice to the respondent to show cause why
his integrity certificate should not be withheld, upon
which the respondent submitted his explanation on October 3,
1953. Thereafter the Superintendent of Police forwarded the
file of the case to the Deputy Inspector General of Police,
Central Range, U. P., who directed the Superintendent of
Police to take proceedings under s. 7 of the Police Act
against the respondent. The departmental proceedings were
started against the respondent; on November 2, 1953, a
charge-sheet was served upon the respondent under s. 7 of
the Police Act stating that there were strong reasons to
suspect that the respondent misappropriated a sum of Rs. 250
from the purse of Tika Ram; the respondent filed his
explanation to the charge made against him; and ultimately
the Superintendent of Police held an enquiry and found on
the evidence that the respondent was guilty of the offence
with which he was charged. On January 2, 1954, the Superin-
tendent of Police issued another notice to the respondent to
show cause why he should not be reduced to the lowest grade
of Sub-Inspector for a period of three years. In due course
the respondent showed cause against the action proposed to
be taken against him on a consideration of which the
Superintendent of Police, Sitapur, by his order dated
January 16, 1954 reduced the respondent to the lowest grade
of Sub-Inspector for a period of three years. When this
order came to the notice of the D. 1. G., U. P., on a
consideration of the entire record, he came to the con-
clusion that the respondent-should be dismissed from service
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and on October 19, 1954 he made an order to that effect. On
February 28, 1955 the Inspector General of Police confirmed
that order; and the revision filed by the respondent against
that order to the State Government was also dismissed in
August 1955. Thereafter the respondent filed a petition
under Art. 226 of the Constitution before the High Court of
Judicature at Allahabad, Lucknow Bench, for quashing the
said orders and the same was heard by a division bench
consisting of Randhir Singh and Bhargava, JJ. The learned
judges held that the provisions of para.
685
486 of the Police Regulations had not been observed and,
therefore, the proceedings taken under s. 7 of the Police
Act were invalid and illegal. On that finding, they quashed
the impugned orders; with the result that the order
dismissing the respondent from service was set aside. The
State Government, the Deputy Inspector General of Police,
Lucknow, and the Inspector General of Police, Uttar Pradesh,
Lucknow, have preferred the present appeal against the said
order of the High Court.
We shall now proceed to consider the various contentions
raised by learned counsel in the order they were raised and
argued before us.
At the outset Mr. C. B. Agarwala, learned counsel for the
appellants, contended that there was no breach of the
provisions of para. 486 of the Police Regulations. If this
contention be accepted, no other question arises ’in this
case; therefore, we shall deal with the same.
The material part of para. 486 of the Police Regulations
reads thus:
"When the offence alleged against a police officer amounts
to an offence only under section 7 of the Police Act, there
can be no magisterial inquiry under the Criminal Procedure
Code. In such cases, and in other cases until and unless a
magisterial inquiry is ordered, inquiry will be made under
the direction of the Superintendent of Police in accordance
with the following rules:
I.Every information received by the police relating to the
commission of a cognizable offence by a police officer shall
be dealt with in the first place under Chapter XIV, Criminal
Procedure Code, according to law, a case under the
appropriate section being registered in the police station
concerned................. This provision expressly lays
down that every information received by the police relating
to the commission of a cognizable offence by a police
officer shall be dealt with in the first place under Ch.
XIV of the Criminal Procedure Code. This provision will not
apply if the information received by the police does not
87
686
relate to the commission of a cognizable offence. Learned
counsel contends that the information received in the
present case does not relate to any offence committed by the
respondent, much less to a cognizable offence. This is a
point raised before us for the first time. This does not
find a place even in the statement of case filed by the
appellants. In the High Court it was not contended that the
information did not disclose any offence committed by the
respondent. Indeed, it was common case that the information
disclosed an offence committed by the respondent, but it had
been contended by the appellants that the misappropriation
of the part of the money amounted to an offence under s. 403
of the Indian Penal Code, which is not a cognizable offence;
and it was argued on behalf of the respondent that it
amounted to an offence under s. 409 of the Indian Penal
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Code. The learned judges accepted the contention of the
respondent. Even so, it is said that whatever might been
the contentions of the parties, the information given by
Tika Ram to the Superintendent of Police clearly disclosed
that no offence was alleged to have been committed by the
respondent and that this Court would, therefore, be
justified, even at this very late stage, to accept the
contention of the appellants. But the contents of the said
information do not in any way support the assertion.
Paragraph 3 of the application given by Tika Ram to the
Superintendent of Police, Sitapur, reads thus:
"That on Sunday last dated 6th September, 1953 the applicant
had with him the currency notes of Rs. 650. The opposite
party as well as Shri Babu Ram met the applicant on the west
of Rampur near the Canal. The opposite-party said to the
Sub-Inspector "This man appears to be clad in rags but is
possessed of considerable money." After saying this the
person of the applicant was searched. The Sub-Inspector,
having opened the bundle of notes, handed over the (notes)
one by one to the opposite party." This statement clearly
indicates that either the Sub-. Inspector or both the Sub-
Inspector and Lalji searched the person of Tika Ram, that
the Sub-Inspector took
687
the bundle of notes and handed the same over, one by one, to
Lalji for being returned to the applicant, and that out of
Rs. 650 a sum of Rs. 250 was not returned to him. The facts
alleged make out an offence against both the Sub-Inspector
as well as Lalji. The mere fact that the respondent is not
shown as one of the opposite parties in the application does
not affect the question, for the information given in the
application imputed the commission of an offence to both the
respondent and Lalji. The notice issued by the Supe-
rintendent of Police on November 2, 1953 to the respondent
also charges him with an offence of misappropriation. It is
stated that the said notice only says that the
Superintendent of Police had good reasons to suspect that
the respondent misappropriated the sum of money and that it
does not aver that he committed the offence of
misappropriation. But what matters is ’that the
Superintendent of Police also understood from the
information given and the enquiry conducted by him that the
respondent had committed the offence. Reliance is placed
upon paragraph 3 of the writ petition wherein the respondent
herein stated that Tika Ram filed a complaint against Lalji
and not against the respondent. As a fact that is correct
in the sense that the respondent was not shown in that
application as the opposite -party though in the body of
that application definite allegations were made against the
respondent. In the counter-affidavit filed by the
Superintendent of Police on behalf of the State it was
clearly averred that on September 9, 1953 Tika Ram appeared
before him and filed a petition to the effect fiat one Lalji
and the respondent had misappropriated a sum of Rs. 250.
Whatever ambiguity there might have been in the information
-we do not find any-this allegation dispels it and it is not
open to the appellants at this stage to contend that the
petition did not disclose any offence against the
respondent. In the circumstances, we must hold that the
information received by the police related to the commission
of an offence by the respondent.
Even so, it is contended that the said offence is not a
cognizable offence. It is said that there was no
688
entrustment made by Tika Ram to the respondent and that,
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therefore, the offence did not fall under s. 409 of the
Indian Penal Code, which is a cognizable offence,
but only under s. 403 of the Indian Penal Code, which is not
a cognizable offence. Section 405 of the Indian Penal Code
defines "criminal breach of trust" and s. 409 thereof
prescribes the punishment for the criminal breach of trust
by a public servant. Under s. 405 of the Indian Penal Code,
"Whoever, being in any manner entrusted with property, or
with any dominion over property, dishonestly misappropriates
or converts to his own use that property, or dishonestly
uses or disposes of that property in violation of any
direction of law prescribing the mode in which such trust is
to be discharged, or of any legal contract, express or
implied, which he has made touching the discharge of such
trust, or wilfully suffers any person so to do, commits
"criminal breach of trust". To constitute an offence under
this section, there must be an entrustment of property and
dishonest misappropriation of it. The person entrusted may
misappropriate it himself, or he may wilfully suffer another
person to do so. In the instant case the respondent, being
a police officer, was legally entitled to search a person
found under suspicious circumstances; and Tika Ram in
handing over the bundle of notes to the police officer must
have done so in the confidence that he would get back the
notes from him when the suspicion was cleared. In these
circumstances, there cannot be any difficulty in holding
that the currency notes were alleged to have been handed
over by Tika Ram to the respondent for a specific purpose,
but were dishonestly misappropriated by the respondent or
at, any rate he wilfully suffered Lalji to misappropriate
the same. We, therefore, hold that if the currency notes
were taken by the respondent in discharge of his duty for
inspection and return, he was certainly entrusted with the
notes within the meaning of s. 405 of the Indian Penal Code.
If so, the information discloses a cognizable offence. We
reject the first contention.
The second objection of learned counsel for the appellants
is that sub-para. (3) of para. 486 of the
689
Police Regulations enables the appropriate police authority
to initiate the departmental proceeding without complying
with the provisions of sub-para. (1) of para. 486. The
-relevant portion of para. 486 of the Police Regulations
reads:
"When the offence amounts to an offence only under section 7
of the Police Act, there can be no magisterial inquiry under
the Criminal Procedure Code. In such cases, and in other
cases until and unless a magisterial inquiry is ordered,
inquiry will be made under the direction of the
Superintendent of Police in accordance with the following
rules:......... "
Rule I relates to a cognizable offence, r. II to a non-
cognizable. offence, including an offence under s. 29 of the
Police Act, and r. III to an offence under s. 7 of the
Police Act or a non-cognizable offence, including an offence
under s. 29 of the Police Act. Rule III says:
"When a Superintendent of Police sees reason to take action
on information given to him, or on his own knowledge or
suspicion, that a police officer subordinate to him has
committed an offence under section 7 of the Police Act or a
non-cognizable offence (including an offence under section
29 of the Police Act) of which he considers it unnecessary
at that stage to forward a report in writing to the District
Magistrate under rule II above, he will make or cause to be
made by an officer senior in rank to the officer charged, a
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departmental inquiry sufficient to test the truth of the
charge. On the conclusion of this inquiry he will decide
whether further action is necessary, and if so, whether the
officer charged should be departmentally tried, or whether
the District Magistrate should be moved to take cognizance
of the case under the Criminal Procedure Code..."
The argument is that the words "an offence under s. 7 of the
Police Act" take in a cognizable offence and that,
therefore, this rule provides for a procedure alternative to
that prescribed under r. I. We do not think that this
contention is sound. Section 7 of the Police Act empowers
certain officers to dismiss, suspend
690
or reduce any police officer of the subordinate rank whom
they shall think remiss or negligent in the discharge of his
duty, or unfit for the same. The grounds for punishment are
comprehensive: they may take in offences under the Indian
Penal Code or other penal statutes. The commission of such
offences may also be a ground to hold that an officer is
unfit to hold his office. Action under this section can,
therefore, be taken in respect of, (i) offences only under
s. 7 of the Police Act without involving any cognizable or
noncognizable offences, that is, simple remissness or negli-
gence in the discharge of duty, (ii) cognizable offences,
and (iii) non-cognizable offences. Paragraph 486 of the
Police Regulations makes this clear. It says that when the
offence alleged against a police officer amounts to an
offence only under s. 7 of the Police Act, there can be no
magisterial inquiry under the Criminal Procedure Code. This
part of the rule applies to an offence only under s. 7 of
the Police Act i. e., the first category mentioned above.
Rule I refers to a cognizable offence i. e., the second
category, rule 11 to a non-cognizable offence i. e., the
third category, and rule III applies to an offence under s.
7 of the Police Act and to a noncognizable offence. Though
the word "only" is not mentioned in rule 111, the offence
under s. 7 of the Police Act can, in the context, mean an
offence only under s. 7 of the said Act i.e., an offence
falling under the first category. So understood, the three
rules can be reconciled. We, therefore, hold that, as the
offence complained of in the present case is a cognizable
offence, it falls under rule I and not under rule 111. We,
therefore, reject this contention.
The third contention advanced by learned counsel for the
appellants raises a constitutional point of considerable
importance. The gist of the argument may be stated thus: In
England, the service under the Crown is held at the Crown’s
pleasure, unless the employment is for good behaviour or for
a cause. But if there is a statute prescribing the terms of
service and the mode of dismissal of the servant of the
Crown, the statute would control the pleasure of the Crown.
In India, the Constitution as well as the
691
earlier Constitution Acts of 1915, as amended in 1919, and
1935 embodied the incidents of "tenure at pleasure" of His
Majesty, or the President or the Governor, as the case may
be, but did not empower the Legislatures under the earlier
Acts and the Parliament and the Legislatures under the
Constitution to make a law abrogating or modifying the said
tenure; therefore, any law made by appropriate authorities
conferring a power on any subordinate officer to dismiss a
servant must be construed not to limit the power of His
Majesty, the President or the Governor, as the case may be,
but only to indicate that they would express their pleasure
only through the said officers. The rules made in exercise
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of a power conferred on a Government-under a statute so
delegating the power to a subordinate officer can only be
administrative directions to enable the exercise of the
pleasure by the concerned authorities in a reasonable manner
and that any breach of those regulations cannot possibly
confer any right on, or give a cause of action to, the
aggrieved Government servant to go to a court of law and
vindicate his rights.
Mr. Pathak, learned counsel for the respondent, in
countering this argument contends that the constitution Acts
in India embodied the incidents of the tenure of the Crown’s
pleasure in the relevant provisions and what the Parliament
can do in England, the appropriate Legislatures in India
also can do, that is, "the tenure at pleasure" created by
the Constitution Acts can be abrogated, limited or modified
by law enacted by the appropriate legislative bodies.
Alternatively he contends that even if the Police Act does
not curtail the tenure at pleasure, the Legislature validly
made that law and the Government validly made statutory
rules in exercise of the powers confered under that Act and
that, therefore, the appropriate authorities can only
dismiss the respondent in strict compliance with the
provisions of the Act and the Rules made thereunder.
To appreciate the problem presented and to afford a
satisfactory answer it would be convenient to consider the
relevant provisions. The Act we are concerned with in this
case is the Police Act, 1861 (Act V
692
of 1861). Its constitutional validity at the time it was
,made was not questioned. Under s. 7 of the Police Act, as
it originally stood, "the appointment of all police officers
other than those mentioned in B. 4 of this Act shall, under
such rules as the local Government shall from time to time
sanction, rest with the Inspector-General, Deputy
Inspectors-General, Assistant Inspectors-General and
District Superintendents of Police, who may, under such
rules as aforesaid, at any time, dismiss, suspend or reduce
any police-officer." That section was substituted by the
present section in 1937 and later on some appropriate amend-
ments were made to bring it in conformity with the
Constitution. Under the amended section, "Subject to such
rules as the State Government may from time to time make
under this Act, the Inspector-General, Deputy Inspectors-
General, Assistant Inspectors-General and District
Superintendent of Police may at any time dismiss, suspend or
reduce any police officer of the subordinate ranks whom they
shall think remiss or negligent in the discharge of his
duty, or unfit for the same". In exercise of the powers
conferred on the Government by s. 46 of the Act, the
Government made the U. P. Police Regulations prescribing the
procedure for investigation and inquiry. We shall’ deal
with the Regulations at a later stage.
In the Government of India Act, 1915, as amended by the Act
of 1919, for the first time, the doctrine of "tenure at
pleasure" was introduced by s. 96-B. In exercise of the
power conferred under sub-s. (2) certain classification
rules were framed by the local Government. This Act was
repealed by the Government of India Act, 1935, and the
section corresponding to s. 96-B was s. 240(1) in the latter
Act. Section 241(2) empowered, except as expressly provided
by the Act, the Governor-General and the Governor to
prescribe the conditions of service of the servants they
were empowered to appoint.
The main difference between the Act of 1919 and that of 1935
was that in the former Act there was only one limitation on
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 33
the Crown’s pleasure, namely, that no person in the service
might be dismissed by
693
an authority subordinate to that by which he was appointed,
whereas in the latter Act a second limitation was imposed,
namely, that no such person should’ be dismissed or reduced
in rank until he had been given a reasonable opportunity of
showing cause against the action proposed to be taken in
regard to him: see s. 240, sub-ss. (2) and (3). Another
difference between the said two Acts was that while under
the former Act all the services were placed in the same
position, -under the latter Act special provision was made
for the police force prescribing that the conditions of
service of the subordinate ranks of the various police
forces should be such as might be determined by or under the
Acts relating to those forces respectively-vide s. 243. By
the Constitution, the Act of 1935 was repealed, and, with
certain changes in phraseology, cls. (1) and (2) of Art. 310
took the place of sub-ss. (1) and (4) of s. 240
respectively, and Art. 309 took the place of s. 241(2).
Under Art. 313, "Until other provision is made in this
behalf under this Constitution, all the laws in force
immediately before the commencement of this Constitution and
applicable to any public service or any post which continues
to exist after the commencement of this Constitution, as an
all-India service or as service or post under the Union or a
State shall continue in force so far as consistent with the
provisions of this Constitution". The result is that the
Police Act and the Police Regulations, made in exercise of
the powers conferred on the Government under that Act,
which .were preserved under s. 243 of the Government of
India Act, 1935, continue to be in force after the Con-
stitution so far as they are consistent with the provisions
of the Constitution.
It is common case, as the contentions of learned counsel
disclose, that the Act and the Regulations framed thereunder
were constitutionally valid at the inception and that they
are also consistent with the provisions of the Constitution.
The difference between the two contentions lies in the fact
that according to one His Majesty’s pleasure cannot be
modified 88
694
by a statute, according to the other it is subject to
statutory provisions. The relevant provisions of the
Constitution read thus:
Article 309: "Subject to the provisions of this
Constitution, Acts of the appropriate Legislature may
regulate the recruitment, and conditions of service of
persons appointed, to public services and posts in
connection with the affairs of the Union or of any State:
Provided that it shall be competent for the President or
such person as he may direct in the case of services and
posts in connection with the affairs of the Union, and for
the Governor of a State or such person as he may direct in
the case of services and posts in connection with the
affairs of the State, to make rules regulating the
recruitment, and the conditions of service of persons
appointed, to such services and posts until provision in
that behalf is made by or under an Act of the appropriate
Legislature under this article, and any rules so made shall
have effect subject to the provisions of any such Act."
Article 310: "Except as expressly provided by this
Constitution, every person who is a member of a defence
service or of a civil service or holds any post connected
with defence or any Civil Post under the Union holds office
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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."
Under Art. 309 the appropriate Legislature may regulate the
recruitment and conditions of service of persons appointed
to public services. Under Art. 310 every person who is EC
member of a public service described therein holds office
during the pleasure of the President or the Governor, as the
case may be. The words "conditions of service" in Art. 309
in their comprehensive sense take in the tenure of a civil
servant: see N. W. F. Province v. Suraj Narain (1).
Therefore, "the tenure at pleasure" is also one of the
conditions of service. But Art. 309 opens out with a
(i) A.I.R. (1949) P.C. 112.
695
restrictive clause, namely, "Subject to the provisions of
this Constitution", and if there is no restrictive, clause
in Art. 310, there cannot be any difficulty in holding that
Art. 309 is subject to the provisions of’ Art 310; with the
result that the power of the Legislature to lay down the
conditions of service of persons appointed to public
services would be subject to "the tenure at pleasure" under
Art. 310. In that event, any law made by the Legislature
could not affect the over-riding power of the President or
the Governor, as the case may be, in putting an end to the
tenure at their pleasure. Would the opening words of the
clause in Art. 310, namely, "Except as expressly provided by
this Constitution", make any difference in the matter of
interpretation? It should be noticed that the phraseology
of the said clause in Art. 310 is different from that in
Art. 309. If there is a specific provision in some part of
the Constitution giving to a Government servant a tenure
different from that provided for in Art. 310, that
Government servant is excluded from the operation of Art.
310. The said words refer, inter alia, to Arts. 124, 148,
218 and 324 which provide that the Judges of the Supreme
Court, the Auditor General, the Judges of the High Courts
and the Chief Election Commissioner shall not be removed
-from their offices except in the manner laid down in those
Articles. If the provisions of the Constitution
specifically prescribing different tenures were excluded
from Art. 310, the purpose of that clause would be exhausted
and thereafter the Article would be free from any other
restrictive operation. In that event, Arts. 309 and 310
should be read together, excluding the opening words in the
latter Article, namely, "Except as expressly provided by
this Constitution". Learne counsel seeks to confine the
operation of the opening words in Art. 309 to the provisions
of the Constitution which empower other authorities to make
rules relating to the conditions of service of certain
classes of public servants, namely, Arts. 146(2), 148(5) and
229(2). That may be so, but there is no reason why Art. 310
should be excluded therefrom. It follows that while Art.
310 provides for a tenure at pleasure
696
of the President or the Governor, Art. 309 enables the
Legislature or the executive, as the case maybe, to make any
law or rule in regard, inter alia, to conditions of service
without impinging upon the overriding power recognized under
Art. 310.
Learned counsel for the respondent contends that this
construction is inconsistent with that prevailing in the
English law and that the intention of the framers of the
Constitution could not have been to make a radical departure
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 33
from the law of England. The law of England on the doctrine
of "tenure at pleasure" has now become fairly crystallized.
In England, all servants of the Crown hold office during the
pleasure of the Crown; the right to dismiss at pleasure is
an implied term in every contract of employment of the
Crown, this doctrine is not based upon any prerogative of
the Crown, but on public policy; if the terms of appointment
definitely prescribe a tenure for good behaviour or
expressly provide for a power, to determine for a cause,
such an implication of a power to dismiss at pleasure is
excluded, and an Act of Parliament can abrogate or amend the
said doctrine of public policy in the same way as it can do
in respect of any other part of common law. The said
propositions are illustrated in the following decisions:
Shenton v. Smith (1), Gould v. Stuart (2), Reilly v. The
King(3), Terrell v. Secretary of State (4). This English
doctrine was not incorporated in its entirety in the Indian
enactments-vide State of Bihar v. Abdul Majid (5), Parshotam
Lal Dhingra v. Union of India (6). Section 96-B of the
Government of India Act, 1915, for the first time in 1919,
by amendment, statutorily recognized this doctrine, but it
was made subject to a condition or s qualification, namely,
that no person in that service might be dismissed by any
authority subordinate to that by which he was appointed.
Section 240 of the Act of 1935 imposed another limitation,
namely, that a reasonable opportunity of showing cause
against the action proposed to be taken in
(i) [1895] A.C. 229.
(3) [1934] A.C. 176.
(5) [1954] S.C.R. 786.
(2) [1896] A.C. 575.
(4) (1953) 2 All E R. 490.
(6) [1958] S.C.R. 828.
697
regard to a person must be given to him. But neither of the
two Acts empowered the appropriate Legislature to make a law
abolishing or amending the said doctrine. The Constitution
of India practically incorporated the provisions of ss. 240
and 241 of the Act of 1935 in Arts. 309 and 310. But the
Constitution has not made "the tenure at pleasure" subject
to any law made by the appropriate Legislature. On the
other hand, as we have pointed out, Art. 309 is expressly
made subject to "the tenure at pleasure" in Art. 310.
Nor the attempt of learned counsel for the respondent to
discover such a power in the Legislature in the Entries of
the appropriate Lists of the Seventh Schedule to the
Constitution can be legally sustained. He referred, inter
alia, to Entry 70 of List I and Entry 41 of List II. It is
not disputed that Parliament can make law for the
organization of the police and for the prevention and
detection of crime. But under Art. 245 of the Constitution
such a power is subject to the provisions of the
Constitution and, therefore, is subject to the provisions of
Art. 310.
Nor can we imply such a power in Parliament or the
Legislatures from Art. 154(2)(b) of the Constitution. Under
Art. 154, "the executive power of the State shall be vested
in the Governor and shall be exercised by him either
directly or through officers subordinate to him in
accordance with this Constitution", and under el. 2(b)
thereof, "nothing in this Article shall prevent Parliament
or the Legislature of the State from conferring by law
functions on any authority subordinate to the Governor." The
argument is that a power to terminate the service at
pleasure under Art. 310 is a part of the executive power of
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the State, that power under Art. 154 can be exercised by the
Governor directly or through officers subordinate to him,
and that under Art. 154(2)(b) the Parliament or the
Legislature of the State can confer the same power on any
authority subordinate to the Governor or, at any rate, can
make a law prescribing that the Governor shall exercise the
said pleasure through a particular officer.
698
We cannot agree either with the premises or the conclusion
sought to be based on it. The first question is whether the
power of the Governor under Art. 310 to terminate the
services of a Government servant at pleasure is part of the
executive power of the State under Art. 154 of the
Constitution. Article 154 speaks of the executive power of
the State vesting in the Governor; it does not deal with the
constitutional powers of the Governor which do not form part
of the executive power of the State. Article 162 says that,
subject to the provisions of the Constitution, the executive
power of the State shall extend to matters with respect to
which the Legislature of the State has power to make laws.
If the Legislature of the State has no power to make a law
affecting the tenure at pleasure of the Governor, the said
power must necessarily fall outside the scope of the
executive power of the State. As we will presently show,
the Legislature has no such power and, therefore, it cannot
be a part of the executive power of the State. That apart,
if the said power is part of the executive power in its
general sense, Art. 162 imposes another limitation on that
power, namely, that the said executive power is subject to
the provisions of the Constitution and therefore, subject to
Art. 310 of the Constitution. In either view, Art. 310
falls outside the scope of Art. 154 of the Constitution.
That power may be analogous to that conferred on the
Governor under Arts. 174, 175 and 176. Doubtless the
Governor may have to exercise the said power whenever an
occasion arises, in the manner prescribed by the
Constitution, but that in itself does not make it a part of
the executive power of the State or enable him to delegate
his power.
Even on the assumption that the power under Art. 310 is
executive power within the meaning of Art. 154, it does not
make any difference in the legal position so far as the
present case is concerned. Article 310 of the Constitution
says that unless expresssly provided by the Constitution to
the contrary, every civil servant holds office during the
pleasure of the Governor subject to the limitations
prescribed under
699
Art. 311. Can it be said that Art. 154(2)(b) expressly
provides for a different tenure? Can it be said that the
said Article confers on the Parliament or the Legislature a
power higher than that conferred on them under Art. 245 of
the Constitution ? It only preserves the power of the
Legislature, which it has under the Constitution, to make a
law conferring functions on an authority subordinate to the
Governor. That power under Art. 245 is not unlimited, but
is subject to the provisions of the Constitution and there-
fore subject to Art. 310 thereof.
It is then said that if the appellants’ contention were not
accepted, it would lead to conflict of jurisdiction: while
the Governor has the power under Art. 310 to dismiss a
public servant at his pleasure, a statute may confer a power
on a subordinate officer to dismiss a servant only subject
to conditions; a subordinate officer functioning under an
Act may not be able to dismiss a servant, but the Governor
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 33
may be able to do so under similar circumstances; a subordi-
nate officer may dismiss a servant, but the Governor may
order his continuance in office.
This argument is based upon the misapprehension of the scope
of Art. 309 of the Constitution. A law made by the
appropriate Legislature or the rules made by the President
or the Governor, as the case may be, under the said Article
may confer a power upon a particular authority to remove a
public servant from service; but the conferment of such a
power does not amount to a delegation of the Governor’s
pleasure. Whatever the said authority does is by virtue of
express power conferred on it by a statute or rules made by
competent authorities and not by virtue of any delegation by
the Governor of his power. There cannot be conflict between
the exercise of the Governor’s pleasure under Art. 310 and
that of an authority under a statute, for the statutory
power would be always subject to the overriding pleasure of
the Governor.
This conclusion, the argument proceeds, would throw a public
servant in India to the mercy of the executive Government
while their compeers in England
700
can be protected by legislation against arbitrary actions of
the State. This apprehension has no real .basis, for,
unlike in England, a member of the public service in India
is constitutionally protected at least in two directions:
(i) he cannot be dismissed by an authority subordinate to
that by which he was appointed; (ii) he cannot be dismissed,
removed or reduced in rank until he has been given a
reasonable opportunity of showing cause against the action
proposed to be taken in regard to him. A condition similar
to the first condition in Art. 311 found in s. 96-B of the
Government of India Act, 1919, was hold by the Judicial
Committee in R. T. Bangachari v. Secretary of State for
India (1) to have a statutory force, and the second
condition, which is only a reproduction of that found in
sub-section (2) of s. 240 of the Government of India Act,
1935, was held in High Commissioner for India and High
Commissioner for Pakistan v. I. M. Lall (2) as mandatory
qualifying the right of the employer recognized in sub-
section (1) thereof. These two statutory protections to the
Government servant are now incorporated in Art. 311 of the
Constitution. This Article imposes two qualifications on
the exercise of the pleasure of the President or the
Governor and they quite clearly restrict the operation of
the rule embodied in Art. 310(1)-vide the observations of
Das, C.J., in Dhingra’s case (3). The most important of
these two limitations is the provision prescribing that a
civil servant shall be given a reasonable opportunity of
showing cause against the -action proposed to be taken in
regard to him. As this condition is a limitation on the
"tenure at pleasure", a law can certainly be made by
Parliament defining the content of "reasonable opportunity"
and prescribing the procedure for giving the said
opportunity. The appropriate High Court and the Supreme
Court can test the validity of such a law on the basis whe-
ther the -provisions prescribed provide for such an
opportunity, and, if it is valid, to ascertain whether the
reasonable opportunity so prescribed is really given to a
particular officer. It may be that the
(1) (1936) L.R. 64 I.A. 40. (2) (1948) L.R. 75 1.A. 225.
(3) [1958] S.C.R. 828, 839.
701
framers of the Constitution, having incorporated in our
Constitution the "tenure at pleasure" unhampered by
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 33
legislative interference, thought that the said limitations
and qualifications would reasonably protect the interests of
the civil servants against arbitrary actions.
The discussion yields the following results: (1) In India
every person who is a member of a public service described
in Art. 310 of the Constitution holds office during the
pleasure of the President or the Governor, as the case may
be, subject to the express provisions therein. (2) The power
to dismiss a public servant at pleasure is outside the scope
of Art. 154 and, therefore, cannot be delegated by the
Governor to a subordinate officer, and can be exercised by
him only in the manner prescribed by the Constitution. (3)
This tenure is subject to the limitations or qualifications
mentioned in Art. 311 of the, Constitution. (4) The
Parliament or the Legislatures of States cannot make a law
abrogating or modifying this tenure so as to impinge upon
the overriding power conferred upon the President or the
Governor under Art. 310, as qualified by Art. 311. (5) The
Parliament or the Legislatures of States can make a law
regulating the conditions of service of such a member which
includes proceedings by way of disciplinary action, without
affecting the powers of the President or the Governor under
Art. 310 of the Constitution read with Art. 311 thereof. (6)
The Parliament and the Legislatures also can make a law
laying down and regulating the scope and content of the
doctrine of "reasonable opportunity" embodied in Art. 311 of
the Constitution; but the said law would be subject to
judicial review. (7) If a statute could be made by
Legislatures within the foregoing permissible limits, the
rules made by an authority in exercise of the power
conferred thereunder would likewise be efficacious within
the said limits.
What then is the effect of the said propositions in their
application to the provisions of the Police Act and the
rules made thereunder? The Police Act of
89
702
1861 continues to be good law under the Constitution.
Paragraph 477 of the Police Regulations shows that the
rules in Chapter XXXII thereof have been framed under s. 7
of the Police Act. Presumably, they were also made by the
Government in exercise of its power under s. 46(2) of the
Police Act. Under para. 479(a) the Governor’s power of
punishment with reference to all officers is preserved; that
is to say, this provision expressly saves the power of the
Governor under Art. 310 of the Constitution. "Rules made
under a statute must be treated for all purposes of
construction or obligation exactly as if they were in the
Act and are to be of the same effect as if contained in the
Act, and are to be judicially noticed for all purposes of
construction or obligation": see Maxwell "On the
Interpretation of Statutes", 10th edn., pp. 5051. The
statutory rules cannot be described as, or equated with,
administrative directions. If so, the Police Act and the
rules made thereunder constitute a self-contained code
providing for’ the appointment. of police officers and
prescribing the procedure for their removal. It follows
that where the appropriate authority takes disciplinary
action under the Police Act or the rules made thereunder, it
must conform to the provisions of the statute or the rules
which have conferred upon it the power to take the said
action. If there is any violation of the said provisions,
subject to the question which we will presently consider
whether the rules are directory or mandatory, the public
servant would have a right to challenge the decision of that
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 33
authority.
Learned counsel for the appellants relied upon the following
decisions of the Privy Council and this Court in support of
his contention that the said rules are administrative
directions: R. T. Rangachari v. Secretary of State for India
(1), R. Venkata Rao v. Secretary of State for India (2),
High Commissioner for India and High Commissioner for
Pakistan v. I. M. Lall (3), S. A. Venkataraman v. The Union
of India(4), and Khem Chand v. The Union of India(5). In
Venkata Rao’s
(1) (1936) L.R. 64 I.A. 40.
(3) (1948) L.R. 75 I.A. 225.
(2) (1936) L.R. 64 I.A. 55.
(4) [1954] S.C.R. 1150.
(5) [1958] S.C.R. 1080.
703
case (1) a reader of the Government Press was dismissed and
in the suit filed by him against the Secretary, of State for
India he complained, inter alia, that the dismissal was
contrary to the statute inasmuch as it was not preceded by
any such inquiry as was prescribed by rule XIV of the Civil
Services Classification Rules made under s. 96B(2) of the
Government of India Act. Under s. 96B of the said Act,
every person in civil service holds office during the
pleasure of His Majesty. Sub-section (2) of that section
empowers the Secretary of State for India to make rules
laying down, among others, the conditions of service, and
sub-s. (5) declares that no rules so made shall be construed
to limit or abridge the power of the Secretary of State in
Council to deal with the case of any person in the civil
service of the Crown in India in such manner as may appear
to him to be just and equitable. - On a construction of
these provisions the Judicial Committee held that His
Majesty’s pleasure was paramount and could not legally be
controlled or limited by the rules. Two reasons were given
for the conclusion, namely, (i) s. 96B in express terms
stated that the office was held during the pleasure and
there was no room for the implication of a contractual term
that the rules were to be observed; and (ii) sub-s. (2) of
s. 96B and the rules made careful provisions for redress of
grievances by administrative process and that sub-s. (5)
reaffirmed the superior authority of the Secretary of State
in Council over the civil service. It may be noticed that
the rules framed in exercise of the power conferred by the
Act was to regulate the exercise of His Majesty’s pleasure.
The observations were presumably coloured by the doctrine of
"tenure at pleasure" obtaining in England, namely, that it
could only be modified by statute, influenced by the princi-
ple that the rules made under a statute shall be consistent
with its provisions and, what is more, based upon a
construction of the express provisions of the Act. These
observations cannot, in our opinion, be taken out of their
context and applied to the provisions of our Constitution
and the Acts of our Legislatures in derogation of the well
settled principles of
(1) (1936) L. R. 64 I. A. 55.
704
statutory construction. In Bangachari’s case (1) a police
officer was dismissed by an authority subordinate to that
by which he had been appointed. The appeal was heard along
with that in Venkata Rao’s case (2) and the judgments in
both the appeals were delivered on the same day. The
Judicial Committee distinguished Venkata Rao’s case (2) with
the following observations at p. 53:
"It is manifest that the stipulation or proviso as to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 33
dismissal is itself of statutory force and stands on a
footing quite other than any matters of rule which are of
infinite variety and can be changed from time to time."
These observations do not carry the matter further an our
remarks made in connection with Venkata Rao’s case (2) would
equally apply to this case. I.M. Lall’s case (3) turns upon
sub-s. (3) of s. 240 of the Government of India Act, 1935.
Again the Judicial Committee made a distinction between the
rules and the provisions of the Act and ruled that sub-ss.
(2) and (3) of s. 240 indicated a qualification or exception
to the antecedent provisions in sub-s. (1) of s. 240. This
decision only adopted the reasoning in the earlier decision.
The remarks made by us in connection with Venkata Rao’s case
(2) would equally apply to this decision. This Court in S.
A. Venkataraman’s case (4) incidentally noticed the
observations of the Judicial Committee in Venkata Rao’s case
(2) and observed that the rules, which were not incorporated
in a statute, did not impose any legal restriction upon the
right of the Crown to dismiss its servants at pleasure.
This Court was not laying down any general proposition, but
was only stating the gist of the reasoning in Venkata Rao’s
case (2). Das, C.J., if we may say so, correctly stated the
scope of the rule in Venkata Rao’s case (2) in the decision
in Khem Chand’s case (5), when he stated at p. 1091-
"The position of the Government servant was, therefore,
rather insecure, for his office being held during the
pleasure of the Crown under the Government of India Act,
1915, the rules could not override
(1) (1936) L.R. 64 I.A. 40.
(3) (1948) L.R. 75 I.A. 225.
(2) (1936) L.R. 64 I.A. 55.
(4) [1954] S.C.R. 1150.
(5) [1958] S.C.R. 1080.
705
or derogate from the statute and the protection of the rules
could not be enforced by action so as to nullify the statute
itself."
To state it differently, the Government of India Act, 1915,
as amended in 1919, and that of 1935 expressly and clearly
laid down that the tenure was at pleasure and therefore the
rules framed under that Act must be consistent with the Act
and not in derogation of it. These decisions and the
observations made therein could not be understood to mark a
radical departure from the fundamental principle of
construction that rules made under a statute must be treated
as exactly as if they were in the Act and are of the same
effect as if contained in the Act. There is another
principle equally fundamental to the rules of construction,
namely, that the rules shall be consistent with the
provisions of the Act. The decisions of the Judicial
Committee on the provisions of the earlier Constitution Acts
can be sustained on the ground that the rules made in
exercise of power conferred under the Acts cannot override
or modify the tenure at pleasure provided by s. 96B or s.
240 of the said Acts, as the case may be. Therefore, when
the paramountcy of the doctrine was conceded or declared by
the statute, there might have been justification for
sustaining the rules made under that statute in derogation
thereof on the ground that they were only administrative
directions, for otherwise the rules would have to be struck
down as inconsistent with the Act. In such a situation, if
the statute was valid-it would be valid in so far as it did
not derogate from the provisions of Art. 310, read with Art.
311-the rules made thereunder would be as efficacious as the
Act itself. So long as the statute and the rules made
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 33
thereunder do not affect the power of the Governor-in the
present case the Governor’s pleasure is expressly preserved-
they should be legally enforceable. In this context the
decisions of the different High Courts in India are cited at
the Bar. It would not serve any purpose to consider every
one of them in detail. It would suffice if their general
trend be noticed. They express two divergent views: one
line relies upon the observations
706
of the Privy Council in Venkata Rao’s case (1) and lays down
that all statutory rules vis-a-vis the disciplinary
proceedings taken against a Government servant are
administrative directions, and the other applies the well
settled rules of construction and holds that the appropriate
authority is bound to comply with the mandatory provisions
of the rules in making an inquiry under a particular
statute. A close scrutiny of some of the decisions
discloses a distinction implied, though not expressed,
between statutory rules defining the scope of reasonable
opportunity and those governing other procedural steps in
the disciplinary process. In our view, subject to the
overriding power of the President or the Governor under Art.
310, as qualified by the provisions of Art. 311, the rules
governing disciplinary proceedings cannot be treated as
administrative directions, but shall have the same effect as
the provisions of the statute whereunder they are made, in
so far a,-, they are not inconsistent with the provisions
thereof We have already negatived the contention of learned
counsel that the Governor exercises his pleasure through the
officers specified in s. 7 of the Police Act, and therefore,
it is not possible to equate the Governor’s pleasure with
that of the specified officers’ statutory power. If so, it
follows that the inquiry under the Act shall be made in
accordance with its provisions and the rules made
thereunder.
Then learned counsel contends that even if the said rules
have statutory force, they are only directory and the non-
compliance with the rules will not invalidate the order of
dismissal made by the appropriate authority.
Before we consider the principles governing the question
whether the rules are mandatory or directory, it would be
convenient at this stage to notice broadly the scope and the
purpose of the inquiry contemplated by the rules.
Section 2 of the Police Act constitutes the police
establishment; s. 7 empowers specified officers to
(1) [1936] L.R. 64 I.A. 55.
707
punish specified subordinate officers who are remiss or
negligent in discharge of their duties or unfit for the
same; s. 46 enables the Government to make rules. to
regulate the procedure to be followed by the magistrate and
police officers in discharge of any duty imposed on them by
or under the Act; under s. 7, read with s. 46 of the Police
Act, the Police Regulations embodied in chapter XXXII were
framed. Paragraph 477 of the Regulations says that the
rules in that chapter have been made under s. 7 of the
Police Act and apply only to officers appointed under s. 2
of the Police Act and that no officer appointed under that
section shall be punished by executive order otherwise than
in the manner provided in that chapter. Paragraph 478
prescribes the nature of the punishment that can be imposed
on the delinquent officers. Paragraph 479 empowers
specified officers to punish specified subordinate officers.
Paragraph 483 gives the procedure to be followed in the
matter of the inquiry against a police officer. It reads:
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 33
"Subject to the special provision contained in paragraph 500
and to any special orders which may be passed by the
Governor in particular cases a proceeding against a police
officer will consist of-
A-A magisterial or police inquiry, followed, if this inquiry
shows the need for further action, by
B-A judicial trial, or
C-A departmental trial, or both, consecutively."
Paragraph 484 declares that the nature of the inquiry in any
particular -case will vary according to the nature of the
offence. If the offence is cognizable or non-cognizable,
the inquiry will be according to Schedule II of the Criminal
Procedure Code. If the information is received by the
District Magistrate, he may in exercise of his powers under
the Criminal Procedure Code either, (1) make or order a
magisterial inquiry; or (2) order an investigation by the
Police. Paragraph 485 reads:
"When a magisterial inquiry is ordered it will be made in
accordance with the Criminal Procedure Code and the
Superintendent of Police will have no direct
708
concern with it until the conclusion of judicial proceedings
or until and unless the case is referred to him for further
disposal, but he must give any assistance to the inquiring
magistrate that he may legally be called upon to give and he
must suspend the accused should this become necessary under
paragraph 496." Paragraph 486 says that there can be no
magisterial inquiry under the Criminal Procedure Code when
the offence alleged against a police officer amounts to an
offence only under s. 7 of the Police Act, and it provides
further that in such cases, and in, other cases until and
unless a magisterial inquiry is ordered, inquiry will be
made under the direction of the Superintendent of Police in
accordance with the rules given thereunder. Under rule I
thereof, "Every information received by the police relating
to the commission of a cognizable offence by a police
officer shall be dealt with in the first place under Chapter
XIV, Criminal Procedure Code, according to law, a case under
the appropriate section being registered in the police
station concerned". There are six provisos to that rule.
Rule II provides for the inquiry of a non-cognizable
offence; and rule III prescribes the procedure in regard to
an offence only under s. 7 of the Police Act or a non-
cognizable offence of which the Superintendent of Police
considers unnecessary at that stage to forward a report in
writing to the District Magistrate. Paragraph 488 deals
with a judicial trial and para. 489 with a departmental
trial. Paragraph 489 says:
"A police officer may be departmentally tried under section
7 of the Police Act-
(1) after he has been tried judicially;
(2) after a magisterial inquiry under the Criminal
Procedure Code;
(3) after a police investigation under the Criminal
Procedure Code or a departmental enquiry under paragraph
486,III above."
There are other provisions dealing with the manner of
conducting the inquiries and other connected matters. The
rules provide for the magisterial and police inquiry
followed, if the inquiry showed the need for further action,
by a judicial trial or a departmental
709
trial, or both, consecutively. In the case of cognizable
offences the Superintendent of Police is directed to
investigate under chapter XIV of the Criminal Pro- p, cedure
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Code and in the case of non-cognizable offences in the
manner provided in rule II of para. 486, and in the case of
an offence only under s. 7 of the Police Act or a non-
cognizable offence in the manner provided under rule III of
para. 486. After one or other of the relevant procedure is
followed, the Superintendent of Police is empowered to try a
police officer departmentally.
The question is whether rule I of para. 486 is directory.
The relevant rule says that the police officer shall be
tried in the first place under chapter XIV of the Criminal
Procedure Code. The word "shall" in its ordinary import is
"obligatory"; but there are many decisions wherein the
courts under different situations construed the word to mean
"may". This Court in Hari Vishnu Kamath v. Syed Ahmad
Ishaque (1) dealt with this problem at p. 1125 thus:
"It is well established that an enactment in form mandatory
might in substance be directory and that the use of the word
"shall" does not conclude the matter."
It is then observed:
"They (the rules) are well-known, and there is no need to
repeat them. But they are all of them only aids for
ascertaining the true intention of the legislature which is
the determining factor, and that must ultimately depend on
the context."
The following quotation from Crawford "On the Construction
of Statutes", at p. 516, is also helpful in this connection:
"The question as to whether a statute is mandatory or
directory depends upon the intent of the legislature and not
upon the language in which the intent is clothed. The
meaning and intention of the legislature must govern, and
these are to be ascertained, not only from the phraseology
of the provision, but also by considering its nature, its
design, and the
(1) [1955] 1 S.C.R. 1104.
90
710
consequences which would follow from construing it the one
way or the other......"
This passage was approved by this Court in State of U. P.
v. Manbodhan Lal Srivastava (1). In Craies on Statute Law,
5th edition, the following passage appears at p. 242:
"No universal rule can be laid down as to whether mandatory
enactments shall be considered directory only or obligatory
with an implied nullification for disobedience. It is the
duty of Courts of Justice to try to get at the real
intention of the Legislature by carefully attending to the
whole scope of the statute to be construed."
A valuable guide for ascertaining the intention of the
Legislature is found in Maxwell on "The Interpretation of
Statutes", 10th edition, at p. 381 and it is:
"On the other hand, where the prescriptions of a statute
relate to the performance of a public duty and where the
invalidation of acts done in neglect of them would work
serious general inconvenience or injustice to persons who
have no control over those entrusted with the duty without
promoting the essential aims of the legislature, such
prescriptions seem to be generally understood as mere
instructions for the guidance and government of those on
whom the duty is imposed, or, in other words, as directory
only. The neglect of them may be penal, indeed, but it does
not affect the validity of the act done in disregard of
them."
This passage was accepted by the Judicial Committee of the
Privy Council in the case of Montreal Street Railway Company
v. Normandin (2 ) and by this Court in State of U. P. v.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 33
Manbodhan Lal Srivastava (1).
The relevant rules of interpretation may be briefly stated
thus: When a statute uses the word "shall", prima facie, it
is mandatory, but the Court may ascertain the real intention
of the legislature by carefully attending to the whole scope
of the statute. For ascertaining the real intention of the
Legislature the Court may consider, inter alia, the nature
and the design of the statute, and the consequences which
(1) [1958] S.C.R. 533, 545.
(2) L.R. [1917] A.C.770.
711
would follow from construing it the one way or the other,
the impact of other provisions whereby the necessity of
complying with the provisions in question is avoided, the
circumstance, namely, that the statute provides for a
contingency of the non-compliance with the provisions, the
fact that the non-compliance with the provisions is or is
not visited by some penalty, the serious or trivial
consequences that flow therefrom, and, above all, whether
the object of the legislation will be defeated or furthered.
Now what is the object of rule I of para. 486 of the Police
Regulations? In our opinion, it is conceived not only to
enable the Superintendent of Police to gather information
but also to protect the interests of subordinate officers
against whom departmental trial is sought to be held. After
making the necessary investigation under chapter XIV of the
Criminal Procedure Code, the Superintendent of Police may as
well come to the conclusion that the officer concerned is
innocent, and on that basis drop the entire proceedings. He
may also hold that it is a fit case for criminal
prosecution, which, under certain circumstances, an honest
officer against whom false charges are framed may prefer to
face than to submit himself to a departmental trial.
Therefore,the rules are conceived in the interest of the
department as well as the officer. From the stand point of
the department as -well as the officer against whom
departmental inquiry is sought to be intiated, the
preliminary inquiry is very important and it serves a real
purpose. Here the setting aside of the order of dismissal
will not affect the public in general and the only
consequence will be that the officer will have to be
proceeded against in the manner prescribed by the rules.
What is more, para. 487 and para. 489 make it abundantly
clear that the police investigation under the Criminal
Procedure Code is a condition precedent for the departmental
trial. Paragraph 477 emphasizes that no officer appointed
under s. 2 of the Police Act shall be punished by executive
order otherwise than in the manner provided under chapter
XXXII of the Police Regulations. This is an imperative
injunction prohibiting
712
inquiry in non-compliance with the rules. Paragraph 489
only empowers the holding of a departmental trial in regard
to a police officer only after a police investigation under
the Criminal Procedure Code. When a rule says that a
departmental trial can be held only after a police
investigation, it is not permissible to hold that it can be
held without such investigation. For all the foregoing
reasons, we hold that para. 486 is mandatory and that, as
the investigation has not been held under chapter XIV of the
Criminal Procedure Code, the subsequent inquiry and the
order of dismissal are illegal.
For the foregoing reasons we hold that, as the respondent
was dismissed without complying with the provisions of para.
486(1), the order of dismissal is illegal and that the High
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 33
Court is right in setting aside the order of dismissal.
In the result, the appeal fails and is dismissed with costs.
WANCHOO, J.-We regret we are unable to agree that the appeal
be dismissed.
Babu Ram Upadhya (respondent) was a sub-inspector of police
who was appointed in December, 1948. In 1953, he was posted
at Sitapur. On September 6, 1953, he was returning from a
village called Madhwapur, when he saw a man who was
subsequently found to be Tika Ram coming from the side of a
canal and going hurriedly into a field. The movements of
Tika Ram roused his suspicion. One Lalji, an ex-patwari,
was also with the sub-inspector. Tika Ram was called and
searched, and a bundle containing currencynotes was found on
him. The sub-inspector took the bundle and counted the
notes and handed them over to Lalji. Lalji in his turn
handed over the notes to Tika Ram. Thereafter Tika Ram, who
is an old-man, almost blind, went away. When he reached his
house, he found that there was a shortage of Rs. 250. He
then made a complaint to the Superintendent of Police on
September 9, 1953, in which he gave the above facts. An
inquiry was made by the Superintendent of Police and
ultimately, departmental proceedings under s. 7 of the
Police Act were taken
713
against the respondent. These proceedings resulted in his
dismissal and thereupon the respondent applied to the High
Court under Art. 226 of the Constitution.
The main contention of the respondent was that r. 486 of the
Police Regulations framed under s. 7 of the Police Act was
not observed and therefore the departmental proceedings
taken against him were illegal. The reply of the appellant
was two-fold: in the first place, it was urged that r. 486
did not apply as there was no report of a cognizable offence
against the sub-inspector; and in the next place, it was
urged that the rules contained in the Police Regulations
were only administrative rules and even if there was non-
compliance with any of them, it would not affect the
departmental proceedings taken against the respondent,
provided there was no breach of the guarantees contained in
Art. 311 of the Constitution.
The High Court held that there was a report of a cognizable
offence under s. 409 of the Indian Penal Code against the
respondent and therefore the procedure provided by r. 486
ought to have been followed. It further held that r. 486
had been framed under s. 7 of the Police Act and was a
statutory provision, which had the force of law. As such,
following the earlier view taken by the High Court in two
other cases it held that a dismissal as a result of
departmental proceedings which took place without complying
with r. 486 would be illegal. In consequence, the writ
petition was allowed. The appellant then applied for a
certificate to enable it to appeal to this Court, which was
refused. Thereupon special leave was prayed for from this
Court, which was granted; and that is how the matter has
come up before us.
Mr. C. B. Aggarwala on behalf of the appellant urges the
same two points before us. So far as the first point is
concerned, we are of opinion that there is no force in it.
There is no doubt that in the complaint made by Tika Ram,
the name of the respondent was not shown in the heading; but
from the facts disclosed in the body of the complaint it is
clear that the sub-inspector searched the person of Tika Ram
and recovered a bundle containing currency-notes. He
714
did so obviously under the authority vested in him as a
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police officer. When therefore he was satisfied that there
was no reason to take any further action against Tika Ram,
it was his duty to see that the entire amount taken by him
from Tika Ram on search was returned to him (Tika Ram). The
High Court was right in the view that where property is
taken away with the intention that it will continue to be
the property of the person from whose possession it has been
taken away, there will be an entrustment of the property to
the person taking it away, and if. subsequently the person
taking it away converts it to his own use or suffers some
other person to do so, there will be criminal breach of
trust and not merely criminal misappropriation. Thus an
offence under s. 409 of the Indian Penal Code appears to
have been committed prima facie on the facts of this case.
As an offence under s. 409 is a cognizable offence, r. 486
of the Police Regulations would apply. This brings us to
the main point in the present appeal.
Sec. 7 of the Police Act under which r. 486 has been framed
is in these terms:-
"Subject to such rules as the State Government may from time
to time make under this Act, the Inspector-General, Deputy
Inspectors-General, Assistant Inspectors-General and
District Superintendents of Police may at any time dismiss,
suspend or reduce any police-officer -of the subordinate
ranks whom they shall think remiss or negligent in the
discharge of his duty or unfit for the same;
or may award any one or more, of the following punishments
to any police-officer of the subordinate ranks, who shall
discharge his duty in a careless or negligent manner, or
who, by any act of his own shall render himself unfit for
the discharge thereof, name-
(a) fine to any amount not exceeding one month’s
pay; (b) confinement to quarters for a term not exceeding
fifteen days, with or without punishment, drill, extra
guard, fatigue or other duty;
(c) deprivation of good-conduct pay;
715
(d) removal from any office of distinction or special
emolument;".
It gives power to four grades of police officers to dismiss,
suspend or reduce any police officer of the subordinate
ranks whom they think remiss or negligent in the discharge
of his duty or unfit for the same. It also provides for
infliction of four other kinds of punishment by these four
grades of officers on any police officer of the subordinate
ranks who discharges his duty in a careless or negligent
manner or who by any act of his own renders himself unfit
for the discharge thereof. In the present case we are
concerned with dismissal and what we shall say hereafter
should be taken to be confined to a case of dismissal. Sec-
tion 7 shows that the power of dismissal conferred by it on
the four grades of police officers is to be exercised
subject to such rules as the State Government may from time
to time make under the Police Act. The contention on behalf
of the respondent is that the power of dismissal has to be
exercised subject to rules and therefore, when r. 486 of the
Police Regulations (framed under s. 7) provided a certain
procedure to be followed with respect to cases in which a
cognizable offence was involved it was not open to the
authority concerned to disregard that procedure. In effect,
it is urged that r. 486 is a mandatory provision and non-
compliance with it would invalidate the departmental
proceedings. It is not in dispute in this case that the
procedure provided by r. 486 was not followed. That
procedural provision is that where a report of a cognizable
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 33
crime is made against a police officer belonging to the
subordinate ranks, it has to be registered as provided in
Chapter XIV of the Code of Criminal Procedure and
investigated as provided thereunder. Thereafter the
authority concerned has to decide whether to send the case
for trial before a court of law or to take departmental
proceedings. In this case no report was registered as
provided under Chapter XIV of the Code of Criminal Procedure
and no investigation was made as provided in that Chapter.
All that happened was that the Superintendent of Police to
whom Tika Ram had complained inquired into the
716
complaint of Tika Ram and thereafter decided to hold a
departmental inquiry under s. 7 of the Police Act against
the respondent.
The main contention on behalf of the appellant is that the
Rules framed under s. 7 of the Police Act are administrative
rules and in any case they are only directory and non-
compliance with them would not vitiate the subsequent
proceedings unless there is a breach of the guarantee
contained in Art. 311 of the Constitution, as all public
servants hold their office at the pleasure of the President
or the Governor, as the case may be, other than those
expressly excepted under the Constitution. Reliance in this
connection is placed on the case of R. Venkata Rao v.
Secretary of State for India in Council (1).
This brings us to a consideration of the tenure on which
public servants hold office. The position in England is
that all public servants hold office at the pleasure of His
Majesty, that is to say, their service was terminable at any
time without amuse: (see Shenton v. Smith (2 )). By law,
however, it is open to Parliament to prescribe a different
tenure and the King being a party to every Act of Parliament
is understood to have accepted the change in the tenure when
he gives assent to such law: (see Gould v. Stuart (3)).
This principle applied in India also before the Government
of India Act, 1915, was amended by the addition of s. 96-B
therein. Section 96-B for the first time provided by
statute that every person in the civil service of the Crown
held office during His Majesty’s pleasure, subject to the
provisions of the Government of India Act and the rules made
thereunder and the only protection to a public servant
against the exercise of pleasure was that he could not be
dismissed by any authority subordinate to that by which he
was appointed. It was this section, which came for
consideration before the Privy Council in Venkata Rao’s case
(1) and the Privy Council held that in spite of the words
".subject to the rules made under the Government of India
Act," Venkata Rao’s employment was not of a
(1) (1936) L.R. 64 I.A. 55 (2) [1895] A.C. 229.
(3) [1896] A.C. 575.
717
limited and special kind during pleasure with an added
contractual term that the procedure prescribed, by the Rules
must be observed; it was by the express terms of s. 96-B
held "during His Majesty’s pleasure" and no right of action
as claimed by Venkata Rao existed. The Privy Council
further held that the terms of s. 96-B assured that the
tenure of office, though at pleasure, would not be subject
to capricious or arbitrary action but would be regulated by
the rules which were manifold in number, most minute in
particularity and all capable of change; but there was no
right in the -public servant enforceable by action to hold
his office in accordance with those rules and he could
therefore be dismissed notwithstanding the failure to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 33
observe the procedure prescribed by them. The main point
which was urged in Venkata Rao’s case (1) was that under r.
XIV of the Civil Services Classification Rules no public
servant could be dismissed, removed or reduced in rank
except after a properly recorded departmental inquiry. In
Venkata Rao’s case (1) the departmental inquiry prescribed
by the rules was found not to have been held. Even so, the
Privy Council held that the words used in s. 96-B could not
and did not cut down the pleasure of His Majesty by rules
though it was observed that the terms of the section
contained a statutory and solemn assurance, that the tenure
of office, though at pleasure., would not be subject to
capricious or arbitrary, action, but would be regulated by
rule. It was further added that supreme care should be
taken that this assurance is carried out in the letter and
in the spirit. The Privy Council further held that in’ the
case before it, there had been a serious and complete
failure to adhere to important and indeed fundamental rules,
and mistakes of a serious kind had been made and wrongs had
been done which called for redress; even so; they were of
the view that as a matter of law that redress was not
obtainable from courts by action..,.
This was the position under the Government of India Act
1915. There was however a material change in the Government
of India Act, 1935. So far, there
(1) (1936) L.R. 64 I. A. 55.
91
718
was one protection to a public servant, namely, that he
could not be dismissed by an authority subordinate to that
by which he was appointed. In the Government of India Act,
1935, s. 240(1) laid down that--
" except as expressly provided by this Act, every person who
is a member of a civil service of the Crown in India......
holds office during His Majesty’s pleasure."
The words of this section are different from those of s. 96-
B and the tenure of all public servants other than those
expressly provided for was to be during His Majesty’s
pleasure. There were, however, two safeguards provided by
sub-ss. (2) and (3) of s. 240. The first was the same
(namely, that no public servant will be dismissed by an
officer subordinate to that who appointed him); but a
further exception was added to the pleasure tenure, namely,
no public servant shall be dismissed until he has been given
a reasonable opportunity of showing cause against the action
proposed to be taken in regard to him. This protection came
to be considered by the Privy Council in High Commissioner
for India and High Commissioner for Pakistan v. 1. M. Lall
(1) and it was held that it was a mandatory provision and
qualified the pleasure tenure and provided a condition
precedent to the exercise of power by His Majesty provided
by sub-s. (1) of s. 240. Thus by the Government of India
Act, 1935, there were two statutory guarantees to public
servants against the exercise of the pleasure of his
Majesty; but it is clear from s. 240 of the Government of
India Act, 1935, that the pleasure of His Majesty to dismiss
was not otherwise subject to rules framed under the
subsequent provisions of the Government of India Act
appearing in Chapter 11 of Part X dealing with public
services.
This position continued till we come to the Constitution.
Article 310(1) of the Constitution provides for what was
contained in s. 240(1) of the Government of India Act, 1935,
and is in these terms:
"(1) Except as expressly provided by this Constitution,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 33
every person who -is a member of a defence
(1) (1948) L.R. 75 I.A. 225.
719
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."
It will be clear therefore that all public servants except
as expressly provided by the Constitution hold their office
during the pleasure of the President or the Governor, as the
case may be. Article 311 then provides for two guarantees
and is similar in terms to s. 240(2) and (3) of the
Government of India Act, 1935 and the two guarantees are the
same, (namely, (i) that no person shall be dismissed or
removed by an authority subordinate to that by which he was
appointed, and (ii) no such person shall be dismissed or
removed or reduced in rank until he has been given a reason-
able opportunity of showing cause against the action
proposed to be taken in regard to him). In Parshotam Lal
Dhingra v. Union of India (1), this Court held that Art. 311
was in the nature of a proviso to Art. 310, that it provides
two constitutional guarantees cutting down the pleasure of
the President or the Governor, as the case may be, and that
it was a mandatory provision which had to be complied with
before the pleasure provided in Art. 310 can be exercised.
Mr. Pathak for the respondent urges that in view of the
words of Art. 310 statute or statutory rules can also cut
down the nature of the pleasure tenure provided by Art. 310
in the same way as in England an Act of Parliament cuts down
the ambit of His Majesty’s pleasure in the matter of
dismissal. He relies on the words "as expressly provided by
this Constitution" and urges that it is open to the legisla-
ture to cut down the pleasure tenure by law or to provide
for its being affected by statutory rules. In this
connection he relies on Art. 309 as well as Art. 154 of the
Constitution. Now, Art. 309 begins with the words "subject
to the provisions of this Constitution" land lays down that
"Acts of the appropriate Legislature may regulate the
recruitment, and conditions of
(1) [1958] S.C.R. 828.
720
service of person appointed, to public services and posts in
connection with the affairs of the Union or of any State".
The proviso to Art. 309 lays down that "it shall be
competent for the President or the Governor as the case may
be to make rules relating to recruitment and conditions of
service until provision in that behalf is made by or under
an Act of the appropriate Legislature". It will be clear
immediately that Art. 309 is subject to the provisions of
the Constitution and therefore subject to Art. 310 and
therefore, any law passed or rules framed under Art. 309
must be subject to Art. 310 and cannot in any way affect the
pleasure-tenure laid down in Art. 310. The words "except as
expressly provided by this Constitution" appearing in Art.
310 clearly show that the only exceptions to the pleasure
tenure are those expressly contained in the Constitution and
no more. These exceptions, for example, are contained inter
alia in Arts. 124. 148, 280 and 324 and also in Art. 310
(2). Therefore, unless there is an express provision in the
Constitution cutting down the pleasure tenure, every public
servant holds office during the pleasure of the President or
the Governor, as the case may be. We cannot accept the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 33
argument that a law passed under Art. 309 prescribing
conditions of service would become an express provision of
the Constitution and would thus cut down the pleasure tenure
contained in Art. 310. As the Privy Council pointed in
Venkata Rao’s case (1), the rules framed under Art. 309 or
the laws passed thereunder amount to a statutory and solemn
assurance that the tenure of office though at pleasure will
not be subject to capricious or arbitrary action but will be
regulated by rule. But if the rules or the law define the
content of the guarantee contained in Art. 311 (2) they may
to that extent be mandatory but only because they carry out
the guarantee contained in Art. 311 (2). Excepting this,
any law or rule framed under Art. 309 cannot cut down the
pleasure tenure as provided in Art. 310.
The same in our opinion applies to a law passed under Art.
154 (2)(b) which authorises Parliament or the legislature of
a State to confer functions on any
(1) (1936) L.R. 64 I.A. 55.
721
authority subordinate to the Governor. If any law is passed
conferring on any authority the power to dismiss or remove
or reduce in rank, that law cannot cut down the content of
the pleasure tenure as contained in Art. 310; that law would
be passed under Art. 245 and that article also begins with
the words "subject to the provisions of this Constitution".
Therefore, the law passed under Art. 154 (2) (b) would also
in the same way as the law under Art. 309 be subject to the
pleasure tenure contained in Art. 310 and cannot cut down
the content of that tenure or impose any further fetters on
it except those contained in Art. 311. The position
therefore that emerges from the examination of the relevant
Articles of the Constitution is that all public servants
other than those who are excepted expressly by the
provisions of the Constitution hold office during the
pleasure of the President or the Governor, as the case may
be, and that no law or rule passed or framed under Art. 309
or Art. 154 (2) (b) can cut down the content of the pleasure
tenure as contained in Art. 310 subject to Art. 311.
With this basic position in our Constitution, let us turn to
the Police Act with which we are concerned. Section 7
thereof lays down that four grades of officers will have
power to dismiss, suspend or reduce any police-officer of
the subordinate ranks subject to such rules as the State
Government may from time to time make under the Police Act.
Though the Police Act is a pre-constitutional law which has
continued under Art. 372 of the Constitution, it cannot in
our opinion stand higher than a law passed under Art. 309 or
Art. 154 (2) (b) and out down the content of the pleasure
tenure as contained in Art. 310. The police officers of the
subordinate ranks are not expressly excluded from the
operation of the pleasure tenure by any provision of the
Constitution; they, therefore, hold office during the
pleasure of the Governor and the only protection that they
can claim are the two guarantees contained in Art. 311. It
is true that s. 7 lays down that the four grades of officers
empowered to dismiss will act according to rules framed by
the State Government; but that does not in our opinion mean
that
722
these rules could introduce any further fetter on the
pleasure tenure under which the police officers of the
subordinate ranks are in service. It was necessary to
provide for the framing of rules because the section
envisages conferment of, powers of punishment of various
kinds on four grades of officers relating to various cadres
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of police officers in the subordinate ranks. It was left to
the rules to provide which four grades of officers would
dismiss police officers of which subordinate rank or would
give which punishment to a police officer of which
subordinate rank. Such rules would in our opinion be
mandatory as they go to the root of the jurisdiction of the
four grades of police officers empowered to act under s. 7.
But further rules may be framed under s. 7 to guide these
police officers how to act when they proceed to dismiss or
inflict any other punishment on police officers of the
subordinate ranks. These rules of procedure, however,
cannot all be mandatory, for if they were so they would be
putting further fetters than those provided in Art. 311 on
the pleasure of the Governor to dismiss a public servant.
of course, if any of the rules framed under s. 7 carry out
the purposes of Art. 311(2), to that extent they will be
mandatory and in that sense their contravention would in
substance amount to contravention of Art. 311 itself. If
this were not so, it would be possible to forge further
fetters on the pleasure of the Governor to dismiss a public
servant and this in the light of what we have said above is
clearly not possible in view of the provisions of the
Constitution. On the other hand, it will not be possible by
means of rules framed under s. 7 to take away the guarantee
provided by Art. 311(1), which lays down that no public
servant shall be dismissed by an authority subordinate to
that by which he was appointed. If any rule under s. 7, for
example, lays down otherwise it will clearly be ultra vires
in view of Art. 311(1). The rules therefore that are framed
under s. 7 would thus be of two kinds, namely (1) those
which define the jurisdiction of four grades of officers to
inflict a particular kind of punishment on a particular
police officer of the subordinate rank-they will be
mandatory
723
for they go to the root of the jurisdiction of the officer
exercising the power, but even these rules cannot go against
the provisions of Art. 31 1 (1); and (2) procedural rules,
which again may be of two kinds. Some of them may prescribe
the manner in which the guarantee contained in Art. 311 (2)
may be carried out and if there are any such rules they will
be mandatory. The rest will be merely procedural and can
only be directory as otherwise if they are also mandatory
further fetters on the power of the Governor to dismiss at
his pleasure contained in Art. 310 would be forged and this
is not permissible under the Constitution. It is from this
angle that we shall have to consider 486.
Before, however, we come to r. 486 itself, we may dispose of
another argument, namely, that the four grades of officers
who have the power to dismiss under s. 7 are exercising the
statutory authority vested in them and are not exercising
the Governor’s pleasure of dismissal under Art. 310 and
therefore their action in dismissing an officer is subject
to all the rules framed for their guidance. We are of
opinion that this argument is fallacious. Article 310
defines the pleasure tenure and by necessary implication
gives power to the Governor to dismiss at pleasure any
public servant subject to the exceptions contained in Art.
310 and also subject to the guarantees contained in Art.
311. This power of the Governor to dismiss is executive
power of the State and can be exercised under Art. 154(1)
by the Governor himself directly or indirectly through
officers subordinate to him. Thus it is open to the
Governor to delegate his power of dismissal to officers
subordinate to him; but even when those officers exercise
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the power of dismissal, the Governor is indirectly
exercising it through those to whom he has delegated it and
it is still the pleasure of the Governor to dismiss, which
is being exercised by the subordinate officers to whom it
may be delegated. Further though the Governor may delegate
his executive power of dismissal at pleasure to subordinate
officers he still retains in himself the power to dismiss at
pleasure if he thinks fit in a particular case in spite
724
of the delegation. There can be no question that where a
delegation is made, the authority making the delegation
retains in itself what has been delegated. Therefore, even
where a subordinate officer is exercising the power to
dismiss he is indirectly exercising the power of the
Governor to dismiss at pleasure and so his power of
dismissal can only be subject to the same limitations to
which the power of the Governor would be subject if he
exercised it directly.
But it is said that in the present case the power has not
been delegated by the Governor under Art. 154(1) and that it
had been conferred on those police officers by law. In our
opinion, that makes no difference to the nature of the
power, which is being exercised by these four grades of
officers under the Police Act. As we have already said Art.
154(2)(b) gives power to Parliament or the legislature of a
State by law to confer functions on any authority
subordinate to the Governor. When the function of dismissal
is conferred by law on any authority subordinate to the
Governor it is nothing more than delegation of the
Governor’s executive power to dismiss at pleasure by means
of law and stands in no better position than a delegation by
the Governor himself under Art. 154(1). Whether it is
delegation by the Governor himself or whether it is
delegation by law under Art. 154(2)(b) or by an existing
law, which must be treated as analogous to a law under Art.
154(2)(b), the officer exercising the power of dismissal is
only indirectly exercising, the Governor’s power to dismiss
at pleasure and his order of dismissal has the same effect
as the order of the Governor to dismiss at pleasure.
Therefore, his order also is only subject to the two fetters
provided in Art. 311 of the Constitution and cannot be
subjected to any more fetters by procedural rules other than
those framed for carrying out the object of Art. 311(2).
Therefore, when the four grades of officers proceed to
dismiss any police officer of the subordinate rank under s.
7 of the Police Act, they are merely exercising. the power
of the Governor to dismiss at pleasure indirectly; and the
only fetters that can be placed on that power are those
contained in the Constitution, namely, Art. 311.
725
We may in this connection refer once again to the case of
Venkata Rao (1) where the dismissal was by an, officer
subordinate to the Governor of Madras; but’ that dismissal
was also held to be an indirect exercise I of His Majesty’s
pleasure to dismiss, and that is why it was held that if r.
XIV of the Classification Rules was not complied with, a
public servant had no right of action against an order
dismissing him at His Majesty’s pleasure. Therefore,
whenever a subordinate officer exercises the power to
dismiss, whether that power is delegated by the Governor, or
is delegated under a law made under Art. 154(2)(b) or under
an existing law analogous to that, he is merely exercising
indirectly the power of the Governor to dismiss at pleasure
and his action -is subject only to the two guarantees
contained in Art. 311. The fact therefore that the police
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officer in this case made the order of dismissal by virtue
of s. 7 will make no difference and he will be deemed to be
exercising the power of the Governor to dismiss at pleasure
by delegation to him by law of that power. We may add that
even where there is delegation by law of the power of the
Governor to dismiss at pleasure, the power of the Governor
himself to act directly and dismiss at pleasure cannot be
taken away by that law, for that power he derives from Art.
310 of the Constitution. The present case therefore must be
judged on the same basis as any case of dismissal directly
by the Governor and would only be subject to the two
limitations contained in Art. 311.
We now come to r. 486. This rule, as we have already
indicated, provides that if there is any complaint of the
commission of any cognizable crime by a police officer, it
must be registered in the relevant police station, under
Chapter XIV of the Code of Criminal Procedure and
investigated in the manner provided by that Chapter. After
the investigation is complete, it is open to the authority
concerned, be it the Superintendent of Police or the
District Magistrate, to decide whether to proceed in a court
of law
(1) (1936) L.R. 64 I.A. 55.
92
726
or to hold a departmental inquiry or do both, though in the
last case the departmental inquiry must take place only
after the judicial trial is over. The first question then
that arises is whether r. 486 is meant to carry out the
purpose of Art. 311(2). As we read r. 486, we cannot see
that it is meant for that purpose; it only provides for a
police investigation under Chapter XIV of the Code of
Criminal Procedure. The police officer making an
investigation under Chapter XIV is not bound to examine the
person against whom he is investigating, though there is
nothing to prevent him from doing so. Nor is the person
against whom an investigation is going on under Chapter XIV
bound to make a statement to the police officer. In these
circumstances, the purpose of an investigation under Chapter
XIV is not relevant under Art. 311(2) which says that a
public servant shall not be dismissed without giving him a
reasonable opportunity of showing cause against the action
proposed to be taken in regard to him. Therefore, r. 486
not being meant for the purpose of carrying out the object
of Art. 311 (2) cannot be mandatory and cannot add a further
fetter on the exercise of the power to dismiss or remove at
the pleasure of the Governor over and above the guarantees
contained in Art. 311.
It appears to us that the object of r. 486 is that the
authority concerned should first make a preliminary inquiry
to find out if there is a case against the officer
complained against either to proceed in a court or to take
departmental action. The investigation prescribed by r. 486
is only for this purpose. Incidentally it may be that after
such an investigation, the authority concerned may come to
the conclusion that there in no case either’ to send the
case to court or to hold a departmental inquiry. But that
in our opinion is what would happen in any case of complaint
against a public servant in any department of Government.
No authority entitled to take action against a public
servant would straightaway proceed to put the case in court
or to hold a departmental inquiry. It seems to us axiomatic
if a complaint is received against any public servant of any
department, that the authority
727
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concerned would first always make some kind of a preliminary
inquiry to satisfy itself whether there is any case for
taking action at all; but that is in our opinion for the
satisfaction of the authority and has nothing to do with the
protection afforded to a public servant under Art. 311.
Rule 486 of the Police Regulations also in our opinion is
meant for this purpose only and not meant to carry out the
object contained in Art. 311(2). The opportunity envisaged
by Art. 311(2) will be given to the public servant after the
the authority has satisfied itself by preliminary inquiry
that there is a case for taking action. Therefore, r. 486
which is only meant to gather materials for the satisfaction
of the authority concerned, whether to take action or not,
even though a statutory rule cannot be considered to be
mandatory as that would be forging a further fetter than
those contained in Art. 311 on the power of the Governor to
dismiss at pleasure. We are therefore of opinion that r.
486 is only directory and failure to comply with it strictly
or otherwise will not vitiate the subsequent proceedings.
We may incidentally indicate two further aspects of the
matter. In the first place, if the argument is that the
Governor must exercise the pleasure himself so that only the
two limitations provided in Art. 311 may come into play; it
appears that the Governor has exercised his pleasure in this
case inasmuch as he dismissed the revisional application
made to him by the respondent. There appears no reason to
hold that the Governor exercises his pleasure only when he
passes the original order of dismissal but not otherwise.
Secondly the fact that r. 486 contains the word "shall" is
not decisive on the point that it is mandatory: (see
Crawford on Statutory Construction, p. 519, para. 262). In
view of what we have said already, the context shows that r.
486 can only be directory. If so, failure to observe it
strictly or otherwise will not invalidate the subsequent
departmental proceedings.
This brings us to the last point which has been urged in
this case; and that is whether there was substantial
compliance with r. 486. We have already
728
pointed out that there was no strict compliance with r. 486
as no case wag registered on the complaint of Tika Ram
and no investigation was made under Chapter XIV of the Code
of Criminal Procedure. But there is no doubt in this case
that before the Superintendent of Police gave the charge-
sheet to the respondent in November, 1953, which was the
beginning of the departmental proceedings against the
respondent, he made a preliminary inquiry into the complaint
of Tika Ram and was satisfied that there was a case for
proceeding against the respondent departmentally. In these
circumstances it appears to us that the spirit of r. 486 was
substantially complied with and action was only taken
against the respondent when on a preliminary inquiry the
Superintendent of Police was satisfied that departmental
action was necessary. Even if r. 486 had been strictly
complied with, this is all that could have happened. In
these circumstances we are of opinion that r. 486 which in
our opinion is directory was substantially complied with in
spirit and therefore the subsequent departmental proceedings
cannot be held to be illegal, simply because there was no
strict compliance with r. 486. The High Court therefore in
our opinion was wrong in holding that the subsequent
departmental inquiry was illegal and its order quashing the
order of dismissal on this ground alone cannot be sustained.
We would therefore allow the appeal.
BY COURT-In accordance with the opinion of the majority,
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this appeal is dismissed with costs.
729