- (1.) This is a petition by a Sub- Inspector of Police who at the relevant time of filing of this petition was attached to Madhupura Police Station in the city of Ahmedabad. When the petitioner was serving in Rajkot Taluka Police Station in the year 1971, a departmental inquiry was instituted against him under the orders of the D. S. P., Rajkot, acting on the adverse report from the Sub- Divisional Police Officer, Gondal. One Mr. Pillai then came to assume the charge of the office of the D. S. P., Rajkot and he had conducted the inquiry. The petitioner had taken part in the inquiry, at which the witnesses for the petitioner's side also were examined. Before Mr. Pillai could give his findings he was transferred from Rajkot in the month of April, 1973 to be succeeded by one Mr. Jethwa. Said Mr. Jethwa took up the thread of the inquiry from where Mr. Pillai had left it and he had submitted his report. But no personal hearing was given to the petitioner. As a matter of fact even Mr. Pillai had not done so. Before anything further could be done in that connection the petitioner came to be transferred from Rajkot District to Ahmedabad City in June, 1973. Then in the month of Dec. 1973, the petitioner received a show-cause notice annexure 'A' from the then Deputy Commissioner of Police Mr. Bhayathe respondent No. 1 herein calling upon him to show cause within a week, why he should not be reverted for two years to the next below grade of a Jamadar. The said notice was received by the petitioner under registered post on 18th Dec. 1973. The petitioner, therefore, wrote a letter requesting the respondent No. 1 to grant him extension of time and the petitioner proceeded to state that nothing thereafter transpired and the respondent No. 1 passed an order of reversion, dated 28th May, 1974 reverting the petitioner for two years to the lower grade. At the time when the petition was filed the said order was not obtained by the petitioner, but having come to know about the same, he approached the Court. The matter was afterwards admitted and interim stay was granted. It was only on 24-1-78 after two adjournments granted to Mr. Shah, the learned advocate for the petitioner on two earlier occasions, and after some hearing having taken place on 23-1-78 in the afternoon that the said order had been produced by him on 24-1-78. But I had permitted the said order to be taken on record and it is now annexure 'B' to the petition. The prayer in the petition was issuance of a writ in the nature of mandamus or any other suitable Writ, Order or Direction, quashing the order of reversion which is now at annexure 'B'. The said order is impugned on the following grounds: (1) The respondent No. 1 was not the petitioner's appointing authority, as the petitioner was appointed by the Deputy Inspector General of Police, Rajkot and so the provisions of Art. 311 were violated ; (2) The principles of natural justiee were violated because neither Mr. Pillai had given personal hearing to the petitioner nor was so done by Mr. Jethwa; (3) The reasonable time was not given to the petitioner to have his say in reply to the second notice; and (4) The recommendations of the inquiry officer in respect of punishment were not given to him in order to have his say in the matter,
(2.) A preliminary objection was raised by Mr. Takwani for the respondents. He stated that the order of punishment, Annexure B, was subject to appeal and if the alternative and equally efficacious remedy was available to the petitioner, he should not have rushed to this court invoking the extraordinary jurisdiction of this court under Art. 226 of the Constitution. Ordinarily this court does not encourage this sort of hasty rush to this court, but in the circumstances of this case and particularly after the matter having been admitted and pending for more- than about four years, it would not be in consonance with the sound principles of justice to ask the petitioner to move the authorities. As I would instantly point out, the order is ex facie bad because the respondent No. 1 had exercised the power of inflicting the punishment in question without invoking the order of the Commissioner of Police. I quote below the relevant extract from Sch. I of the Bombay Police (Punisments and Appeals) Rules, 1956: 3. Deputy Commissioner of Police or Assistant Commissioner of Police. (1) All officers to whom the Bombay Police (Punishments and Appeals) Rules, 1956, are applicable except Inspectors. All punishments specified in Rule 3 subject to restrictions specified in column 4. Punishments of extra drill shall be inflicted only on constables. Punishments or recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders, suspension, compulsory retirement, reduction, removal, dismissal or fine shall be inflicted only under the orders of the Commissioner of Police. (2) Inspectors. Caution and reprimand. 4. Superintendent of Police. (1) Head Constables. The punishment specified in clause (1) and (i) of sub-rule (2) of rule 3. In cases where defaulters were appointed by the Commissioner of Police or the Inspector General of Police the Deputy Commissioner of Police or the Assistant Commissioner of Police shall not inflict punishments of compulsory retirement, removal or dismissal. (2) Constables. Even a casual glance at the column No. 4 would show that the punishment of reduction in rank can be passed by the Deputy Commissioner or the Assistant Commissioner of Police "only under the orders of Commissioner of Police" Even the respondents in their affidavit do not dispute this fact, but their explanation is as follows; "I say that the Commissioner of Police, by his order No. A/2791 dated 8-11-73 has authorised the officers of the rank of the respondent No. 1 with the powers to inflict such punishment in respect of the officers below the rank of the Inspectors". Curiously enough, the said order dated 8-11-73, referred to in the affidavit-in- reply was not annexed to the affidavit but at my behest Mr. Takwani was fair enough to produce the same for my perusal. It reads as follows in material parts: "The Commissioner of Police is pleased to order that Deputy Commissioners of Police should henceforth issue orders of punishment in the following cases, without consulting the Commissioner of Police............... (1) ............... (2) ............... (3) Reduction....................." When the Rules having statutory force lay down that the punishments like the reduction in rank could be inflicted by the Deputy Commissioner of Police "only under the orders of Commissioner of Police," a general order is passed by the Commissioner of Police, dispensing with that statutory requirement. This is something very strange. By an executive fiat, the requirement of a statutory rule cannot be done away with and this is what has been done by the Commissioner of Police by issuing the said letter.
(3.) Mr. Takwani, however, in this connection submitted that in column No. 4 reference to "only under the orders of the Commissioner of Police" meant the general approval and did not impose the application of mind by the Commissioner of Police to each individual case. By any canon of commonsense, it is difficult to subscribe to the submissions put forward by Mr. Takwani for the respondents. Dismissal, removal, reduction in rank etc. are very harsh punishments. While framing the Rules, the State Government exercising legislative powers, thought in its wisdom that such drastic steps should be taken by the Deputy or Assistant Commissioner of Police, only after approval of the Commissioner of Police. The provision is made only with a view to see that an officer comparatively the lower one like the Deputy or Assistant Commissioner, does not act in haste and so the order or opinion or approval of the Commissioner is introduced as a sort of a bridle or a check on the possibly hasty decision of the Deputy or Assistant Commissioner. This is the only conceivable object in introducing the said restriction. If such a restriction can be taken away by such an all-time order like the one pressed into service on behalf of the respondents, the statutory aim and purpose would be obviously defeated. The Commissioner of Police, therefore, acted without authority of law in doing away with this mandatory requirement of the Rule having the force of law and consequently the action of the respondent No. 1 in passing the punishment in question would be an act without authority of law. If it be so, the order would obviously be invalid and inoperative right from its inception, and consequently the existence of alternative remedy would be no bar to a writ petition. It is to be remembered at this stage that existence of such an alternative remedy is not a statutory bar, but it is a bar developed by the courts for the purpose of exercise of their discretionary jurisdiction. As and when the court's conscience feels revolted at the high-handed or ex facie illegal handling of the situation, the court can certainly intervene even though an alternative remedy is available. If any judgment of the Supreme Court on this score is required to be brought to aid, the case of M/s. Baburam Prakash Chandra Maheshwari V/s. Antarim Zila Parishad now Zila Parishad, 1969 AIR(SC) 556 can be had recourse to. As the Supreme Court itself observes, it should be remembered that the rule of exhaustion of statutory remedies before a writ is granted is a rule of self imposed limitation, a rule of policy, and discretion rather than a rule of law and the court may therefore in exceptional cases issue a writ such as a writ of certiorari, notwithstanding the fact that the statutory remedies have not been exhausted. In this view of the matter, the preliminary objection raised by Mr. Takwani fails.;