Smt. Kanta Devi vs Union Of India And Anr

S.No. Punishment Subedar Sub-Ins. Others Const. Remarks (Inspector) Inspector except and enrolled enrolled followers followers ________________________________________________________________________________________

1. 2. 3. 4. 5. 6. 7 ______________________________________________________________________________________

1. Dismissal or DIGP DIGP Commandant Commandant To be removal from inflicted the Force after formal Departmental enquiry"

_______________________________________________________________________________________

A bare reading of the provisions show that while for the purpose of appointment, the approval of the DIG or the IG, as the case may be, is required to be obtained, that does not make the IG, the appointing authority. The punishments shown as items 1 to 11 in column 2 of the table can be imposed on non-gazetted officers and men of various ranks by the authorities named under headings at columns 3 to 6 in terms of the conditions mentioned in column 7. So far as item No.1 in Rule 27 is concerned, Subedar (Inspector) can be dismissed or removed from the Force by the Deputy Inspector General of Police, who is higher in rank than the Commandant. While considering an almost identical provision, this Court held that even when prior recommendation is necessary, it does not make the recommending/approving authority the appointing authority. (See State of Assam v. Kripanath Sarma and Ors. AIR 1967 SC

459). In that case, the question was whether the Deputy Inspector of Schools in his capacity as the Assistant Secretary of the State Board, could terminate the service of the concerned employees in view of Section 14(3)(iii) of the Assam Elementary Education Act (No.30) of 1962 read with Section 18 of the Assam General Clauses Act (No.II) of 1915.

It was held that as the Assistant Secretary did not have complete power to appoint teachers, he can do so on the advice of the Advisory Board. Even assuming that recommendation of the Committee is necessary before appointment is made by the Assistant Secretary, the fact still remains that it is not the committee which appoints and the appointing authority is the Assistant Secretary.

According to Rule 7(b), the appointing authority is the Commandant and since the DIG is of higher rank, there is no illegality in the order passed by him in passing the order of dismissal. Just because the IG's approval is required for the purpose of appointment or promotion, the position of the Commandant as the appointing authority is not changed and the IG does not become the appointing authority. If the submission made is accepted, it would mean addition of words or expressions in Rule 27. It is not a case of causus omissus as contended. A construction which requires for its support, addition of words has to be avoided. The words of a statute never shared, in interpretation, be added or subtracted from without almost a necessity. It is contrary to all rules of construction to read words into a statute unless it is absolutely necessary to do so. Courts cannot reframe the words used by the Legislature as it has no power to legislate. A matter which, for the sake of argument, should have been provided but has not been provided for in a statute cannot be supplied by the Courts as to do so will be legislation and not construction. (See Johnson vs. Moreton (1978) 3 All E.r. 37 (H.L.), Dr. Baliram Waman Hiray vs. Mr. Justice B. Lentin and Ors. (AIR 1988 SC 2267). There is no presumption that a casus omissus exists, and language permitting the Courts should avoid creating a casus omissus where there is none. Therefore, the conclusion of the Division Bench in holding that the order of dismissal passed by the DIG was legal, does not suffer from any infirmity to warrant interference.

However, the other questions raised by the appellant need consideration. Undisputedly, the order of dismissal was passed in disciplinary proceedings. Referring to the nature of allegations, it was highlighted that when for more than 20 years the deceased employee had rendered unblemished service order of dismissal should not have been passed.

There is no scope for interference in a case where punishment is found not disproportionate to the proved charges that too in exceptional cases. It is to be noted that there was no consideration of these aspects by learned Single Judge or the Division Bench. Before learned Single Judge such a stand appears to have been taken. But only on the ground that DIG had no competence to pass the order of dismissal, the order was quashed. In appeal, Division Bench only dealt with legality of that conclusion. There is no definite material as to whether these pleas were pressed into service before the High Court. No other aspect was considered. But, as noted above, records of disciplinary proceedings are not available, but some particulars of the charges and the conclusions are available on record. They are not sufficient to conclude one way or the other. Taking into account past service records and non-availability of full records of the disciplinary proceedings, the interest of justice would be best served if on the peculiar facts Rupees 2.5 lacs is paid as ex-gratia payment by the respondents to the appellant within two months from today.

The appeal is disposed of accordingly.